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FindACase | Jobe v. AAA Trailer Services, Inc.
Jobe v. AAA Trailer Services, Inc.
AAA TRAILER SERVICES, INC., Respondent.
Hon. Mary K. Hoff, J.
Jess Jobe ("Jobe") appeals from the trial court's grant of summary judgment in favor of AAA Trailer Services, Inc. ("AAA") on its claim that Jobe, an at-will employee, breached an enforceable non-competition agreement ("Non-Compete") and that AAA did not tortiously interfere with Jobe's new employment. We reverse and remand.
AAA is a full-service commercial tractor and trailer mechanical service provider that also performs mobile mechanic services. On August 7, 2015, Jobe was employed by AAA as a mobile tractor and trailer mechanic. On November 11, 2015, Jobe signed a "Confidentiality and Non-Competition, Non-Solicitation Agreement For At Will Employees" ("Agreement"). In exchange for agreeing to the Non-Compete, AAA promised to pay Jobe an additional one-dollar per hour as well as continued at-will employment. On June 28, 2016, Jobe terminated his employment with AAA. Shortly thereafter, Jobe commenced employment with a new employer. On July 5, 2016, Jobe received a letter from AAA's attorney ("Letter") informing Jobe that he was in violation of the Non-Compete. Allegedly, as a result of AAA's actions and its Letter, Jobe was terminated from his new employment.
On August 23, 2016, Jobe filed a two-count petition against AAA seeking a declaration that the Non-Compete part of the Agreement was unenforceable (Count I) and damages for tortious interference with a business expectancy based on AAA's actions and its Letter (Count II). The parties filed cross-motions for summary judgment. The trial court granted AAA's motion for summary judgment, and denied Jobe's motion. The trial court found that the Non-Compete was valid and enforceable and that the Agreement was supported by consideration. In addition, the trial court found Jobe failed to show that AAA interfered with his relationship with his new employer such AAA's actions and its Letter constituted tortious interference with a contract. Jobe now appeals.
The propriety of summary judgment is solely an issue of law. City of DeSoto v. Nixon, 476 S.W.3d 282, 286 (Mo. banc 2016). Appellate courts review a grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered. Id.
"The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially." Frye v. Levy, 440 S.W.3d 405, 407 (Mo. banc 2014). "A 'defending party' may establish a right to summary judgment by showing (1) facts that negate any of the claimant's necessary elements; (2) that the claimant, after an adequate period of discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of the facts required to support the movant's properly pleaded affirmative defense." Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 561 (Mo. banc 2014).
"The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record." Shiddell v. Bar Plan Mut., 385 S.W.3d 478, 483 (Mo. App. W.D. 2012). "However, facts contained in affidavits or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Even if the facts alleged by the movant in a summary judgment motion are uncontradicted, they must still establish a right to judgment as a matter of law. Miller v. City of Wentzville, 371 S.W.3d 54, 57 (Mo. App. E.D. 2012) (citing Kinnaman-Carson v. Westport Ins. Corp., 283 S.W.3d 761, 765 (Mo. banc 2009)). "'The movant bears the burden of establishing both a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment.'" Kinnaman-Carson, 283 S.W.3d at 765 (quoting Lewis v. Biegel, 204 S.W.3d 354, 356 (Mo. App. W.D. 2006)). "The trial court is prohibited from granting summary judgment, even if no responsive pleading is filed in opposition to a summary judgment motion, unless the facts and the law support the grant of summary judgment." Id.
Jobe raises two points on appeal. In Point I, Jobe argues the trial court erred in denying his motion for summary judgment because the Non-Compete was invalid and unenforceable, because the undisputed facts showed that AAA had no legitimate business interest in the non-compete and provided inadequate consideration. In Point II, Jobe argues the trial court erred in granting summary judgment in favor of AAA on Jobe's claim for tortious interference because the undisputed facts showed that, through AAA's actions and its Letter sent to Jobe threatening legal action, AAA interfered with Jobe's new employment.
(2) …. The response shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant's factual statements.

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Welcome. Rod's Homepage. This is a Homepage and 7-page Passive Private NonForProfit Website.
Grown Folks Presidential Library located in United States of America. Tour open today.
Rod is not a lawyer, also he uses citing tools and paraphrasing tools such as: www.citationmachine.net/mla/cite-a-website and www.rephrase.org/better-than-rephrase-generator so they might not be perfect; either.
This research paper is written on Criminal Law by Rod Jackson. He read some of the text Criminal Law, Concepts and Practice, Second Edition, Carolina Academic Press, Authored by Ellen S. Podger, Peter J. Henning, Andrew E. Taslitz, and Alfredoo Garcia. (Podger, Henning, Taslitz, and Garcia) First, Rod will list some defenses that may prevent Prima Facia Cases, then he will write a little bit on some of these topics: Ex Post Facto, The Mercy Rule, Conspiracy and what Government has to prove, Strategy, Exclusion of [exculpatory] evidence as unconstitutional, Impeachment of witness, law on Outrageous Government conduct, what it takes to prove a case, hearsay evidence that usually won't make it to a competent court of law, legal argument against scumbags testifying in front of Congress and reasons to appeal to higher court, entrapment elements, a person with a history of false testimony not testifying, examples of Mens Reus, Actus Reus, discovery in criminal trials, Jurisdiction and venue, specific intent, that secret informant may be a bug, room tap, placed anywhere a person goes in your business; sweeping the White House for taps each week, Planting Evidence and Criminal Framing a person is a crime against that person by the Government vs Entrapment is unconstitutional acts by the government, the Russian investigation was not bogus, it was unconstitutional entrapment, coercion, framing, and impossibility as a defense to committing a crime. Note. Rod has never taken a criminal law course in College and has not read any law books at length before reading this text. So, he probable ignorant on some of this stuff. For some people, to deny without presenting an alternative explanation, is inferior in law or science, every space has to occupy something, bogus, what in legal terms is it, if it isn’t what is said, then explain what it is, this is called Defense.
Qualifier, Rod: Expert in creating Twitter List, Website Portals, and the functionality of Social Media in those Areas. Rod often writes in third-person-self so it is he speaking when he uses "Rod" this or that.
Expert Background: Rod has spent 16 years studding, taking related courses, and building Website Portals. He joined Twitter in 2009 and took a social media class at UNLV where he gained expertise in using, building and the functionality of Twitter list. He started building Website platforms and portals around 2003; so Rod was already advanced in Platform building before joining Twitter. Twitter was just another platform made available to the public to use. The folks at Twitter were very courteous and polite to Rod. So Rod made Twitter list Great, but Twitter list did not make Rod. He was already great at what he did. As Rod progressed with list over the years, Twitter made changes so the product better suited what Rod was doing. Rod never had his accounts suspended, never had any warnings against him creating list, he never was said to have violated any abusive behavior policies, he attempted to stay within the guidelines that they made visible available, and if did violated any, like he said, he was never approached as a developer to be in error of them before he decided to close all his Twitter accounts. Around 2016 before the election, Rod posted several times that he would be retiring from social media, but he has been dragged back into ever since. His plan debated whether to leave some list up passive to run to eternity, or the life of the Company, unless format changed or to close the list to not have to monitor them. His mind was made up when he thought a person working with a network on Twitter were trying to frame him with things put into his list beyond his control that he could not remove that were not appropriate. He caught them. And just like that scumbag girl at UNLV voice message he recorded tried to change his tax situation, and those at the Veterans Hospital backdating a false fabricated document with lies working with this network of individuals, Rod shut down all Twitter use and list before they succeeded in damaging his long time work on Twitter. Anything said other than that about Rod using Twitter, would be after the fact lies, and have to be the scumbags that were trying to frame him, now working after the fact of him Closing His Account and List at His Own Will. Rod was the King of Twitter at developing new ideas and concepts building list and many people new that. In his opinion, when he quit, it was a major loss to Twitter and their users.
12/29/2018 Someone created a Twitter account called doctheshow / disorderly conduct; Rod never had a Twitter account named @Doctheshow and someone put this in his google search ranked pretty high for a closed twitter account; Rod has not used Twitter since 2017 or so and they still trying to Frame Rod with false information. Real scumbags creating fake news; yes done with malicious intent to cause harm by at least two people; it did not get listed in high ranking google search by itself. Please remove google people. And no, all those images tagged as Doctheshow.com under "images google" are not tagged by Rod. Rod does not tag, no descriptive tag, no data tags, nor 'Alt Tag', nor "Meta Tags" on images on the internet or on his Websites; and he does not see most of them as being related to doctheshow.com that are tagged to his Website. Thanks. But, no thanks whoever tagged those hundreds of images to make them show up. And some other fake news SEO ranked high on google has twitter information on DOCTHESHOW.COM which @doctheshow was never on Twitter; at least not an account I formed. It uses data from a black_history account, which should have been around 4000 posts and not 47 posts, kind of mixing up the data, as if it were data taken from doctheshow.com and from doctheshow music blog page closed in 2016; but it was not. Rod will be checking in on occasion to update what these jokers are up to next. A lot of what is going on is not just bias; maybe fabricating false data, fabricating false evidence, fabricating false accounts, irrelevant data from old Web pages, and then misusing them, planting this evidence using algorithms into top searches. Rod thinks this is corruption by someone working for social media companies, etc. or maybe embedded law-enforcement or government workers, maybe a network of "dirty cops? And/or corrupt employees working for the government? And/or corrupt elected officials allowing them to operate as such? If so." Framing and Conspiracy to Frame someone is a criminal offense.
From Rod's memory, Rod never had an account named: https://twitter.com/DOCTheShow and certainly not disorderlyconduct. Rod has never been accused of any disorderly conduct in college, high school, work, or business. Not in Rod's repertoire of Character. Unless, you are extreme to consider education itself disorderly. People banned and burned the Bible, Text Books, Truth about History Books, and many more, in many countries in history. Very extreme people still exist today who consider or view the idea of Truth or Education disorderly, maybe disorderly conduct.
This account [tag named: DisOrderlyConduct @ DOCTheShow / Twitter, The latest Tweets from Disorderly Conduct @ DOCTheShow] is not related to Doctheshow.com, neither now or in the future if opened by someone else. Rod has not used Twitter since 2017 and has no plans on using the platform in the future. Retired.
Halpern, and Sue Halpern. “The Search for Anti-Conservative Bias on Google.” The New Yorker, The New Yorker, 19 Dec. 2018, www.newyorker.com/tech/annals-of-technology/the-search-for-anti-conservative-bias-on-google "During the hearing, Republican members of Congress kept coming back to this question of anti-conservative bias, only it wasn’t much of a question. ""But an algorithm built without favoring one political party or another, or constructed without intentionally championing a particular ideology, is actually designed to deliver culturally biased results. A search engine runs on algorithms and artificial intelligence to instantaneously sift through the Internet’s nearly two billion Web sites. Google’s engineers have embedded something they call “authoritativeness” into their search algorithm to deliver its results, though what this is, exactly, is challenging to understand, because it appears to be based on a tautology: an authoritative source is a source that a lot of other sources consider to be authoritative. "
Pierson, David. “Facebook, Twitter and Google Have Become Political Footballs for the Left and Right. This Week, Congress Get Its Kicks In.” Los Angeles Times, Los Angeles Times, 4 Sept. 2018, www.latimes.com/business/technology/la-fi-tn-tech-bias-hearings-20180904-story.html "“I think what Google and what others are doing, if you look at what’s going on at Twitter, if you look at what’s going on in Facebook ... they better be careful because you can’t do that to people,” Trump said at the White House on Aug. 28. The same day, he accused Google of promoting negative search results about him. “So I think that Google, and Twitter and Facebook, they are really treading on very, very troubled territory and they have to be careful. It’s not fair to large portions of the population.” Conservatives have adopted a hashtag on social media as a rallying cry: #StopTheBias. "
Is Framing Someone for a Crime a Crime? - Quora. www.quora.com/Is-framing-someone-for-a-crime-a-crime "12 Answers Kelly Kinkade Kelly Kinkade, Law student from a long time ago, not a lawyer. Answered Apr 28 2015 · Author has 8.1k answers and 43.1m answer views Some possible charges: Perjury, if the framer actually offers false testimony in court, in a deposition, or in a sworn affidavit; Subornation of perjury, if the framer pays or otherwise induces others to offer false testimony in court, in a deposition, or in a sworn affidavit; Filing a false police report, if the framer makes false statements to the police; Obstruction of justice; Conspiracy; Official misconduct, if the framer is a police officer, prosecutor, or other public official having a duty to refrain from prosecuting the innocent and acts to further prosecution knowing that the defendant is innocent; Deprivation of civil rights under color of law (18 USC § 242), if the framer acted under color of law and the individual framed was targeted for framing on the basis of his or her membership in a class protected by that statute. In addition, the framer can be charged with being an accessory to the underlying criminal act, if there is an underlying criminal act and a purpose of the frame is to protect the actual criminal wrongdoer from prosecution. A prosecuting attorney who participates in a scheme to prosecute a person he or she knows to be innocent may also face disciplinary action, which can include disbarment."
“Police Corruption.” Wikipedia, Wikimedia Foundation, 21 Dec. 2018, en.wikipedia.org/wiki/Police_corruption. Extortion/bribery: Demanding or receiving payment for criminal offenses, to overlook a crime or a possible future crime. Types of bribery are protection for illegal activities, ticket fixing, altering testimony, destroying evidence, and selling criminal information. Bribery is one of the most common acts of corruption. Theft and burglary Is when an officer or department steals from an arrest and crime victims or corpses. Examples are taking drugs for personal use in a drug bust, and taking personal objects from a corpse at the scene of a crime. A theft can also occur within a department. Shakedowns/ "Fixing": Undermining criminal prosecutions by withholding evidence/ Perjury: Lying to protect other officers or oneself in a court of law or a department investigation. Direct criminal activities: A law enforcement officer engages in criminal activity themselves. The "frameup": The planting or adding to evidence, especially in drug cases.""Flouting the police code of conduct in order to secure convictions of civilians and suspects—for example, through the use of falsified evidence. There are also situations where law enforcement officers may deliberately and systematically participate in organized crime themselves. Selective enforcement of jay walking tickets based on race or gender in many cities.
Congressional Hearing: Mentioning some of the members leaving and coming back after Twitter correction listed in the below articles? No, Rod will never use Twitter again for that reason. He built a safer platform that accomplish more in Education_Entertainment_Research that he can leave passive, and not have to constantly watch, without the threat from internal or external sources adding things to his Personal Blog that are inappropriate in framing another person’s ideas, with malicious, maybe fraudulent intent, as Rod's ideas. This was the background of Rod on Twitter. He will analyze the inferior parts he heard and the potential dangers that he saw, and still see, that Twitter presents to America Democracy after he watched the Congressional Hearing attended by Twitter CEO.
Alvarez, Edgar. “What to Expect When Twitter CEO Jack Dorsey Testifies to Congress.” Engadget, 5 Sept. 2018, www.engadget.com/2018/09/04/jack-dorsey-sheryl-sandberg-twitter-facebook-congress-hearings-preview/ "the company did discover more than 2,500 accounts in 2016 linked to the Internet Research Agency (IRA), the Kremlin's notorious digital army of bots and trolls. Last January, Twitter revealed that the damage was actually larger than originally thought, announcing that 1.4 million of its users interacted with nearly 4,000 Russian spam accounts during the 2016 election. This included people who retweeted, quoted, replied to, mentioned or liked tweets from these accounts, though it still left out those who saw messages from the IRA on the site but otherwise didn't interact them. The Senate Intelligence Committee will ask Dorsey about what steps his team is taking to crack down on these bad actors, not just from Russia but also other countries that are trying to create discourse between Americans"
The Debt. This is not Democracy. This is Suicide of a Democracy. Likened to, similar to an Opioid Dope Head Addicted; killing themselves even when you tell them "you killing yourself." Just Rod's opinion. He was never an Opioid addict and he is not an Opioid user.
"Understanding The Inferiority Complex.” Everyday Health, Everyday Health, 15 Nov. 2017, www.everydayhealth.com/emotional-health/understanding-inferiority-complex/ "The concept of inferiority complexes was developed by Alfred Adler, who credited Napoleon as the first to have suffered from such a condition. Since then, many sociologists have even suggested that inferiority complex symptoms can affect entire culture groups. This is defined as a “cultural cringe”, and is used to describe societies that feel threatened by others, and act out in negative ways to overcome that feeling of inadequacy. It can also refer to the way a people group embraces their own culture, and Australia is often presented as a prime example. Their entertainment has been heavily influenced by American television, almost to the point where they have no media concepts of their own. This inward self-defeat of creativity is an example of the controversial cultural cringe."
The most powerful criticism of the ostrich instruction is, precisely, that its tendency is to allow juries to convict upon a finding of negligence for crimes that require intent. A deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires.
"Under the instructions given by the trial court, the element of legal causation defeated by an intervening cause only when the intervening cause amounts to the sole substantial cause of the prohibited result."
Inferior on a subject and given inferior word terminology and information leads to false premises, false analysis, and false conclusions to investigation which may lead to false prosecution on bad evidence. Not all Bots are malicious and anyone speaking as an expert witness on the subject should differentiate between the two. So no, Good Bots should not equally be treated as something automatic bad by mention. A comprehensive array of information is available by googling the words so Rod will not cover that subject. He will focus on Good Bots use on Twitter. They can be one of the most resourceful, ingenious, important, talented, sharp, clever, cost-effective, creative tools for people promoting research work, developing entertainment platforms, or as an automated program for learning and teaching the public different core subjects. Rod will go deeper on the subject.
Rod has followed Alex Jones for a couple decades as he proved many conspiracy theories to be true or disproved the media to be false by documenting the evidence and going to places where the theories were supposed to have occurred. He brought into question much investigation journalism investigating what the public wanted to know having 5 million or more followers or hits maybe. But, Rod did remove Alex Jones Info-wars, from his Twitter list in 2016-2017 before anyone else banned him. Alex took his show more in a direction of acting and performing with the Sandy-Hook matter and was making more personal angry threats directed at certain folks that was becoming unacceptable for a couple a reason. In weighing a threat, so many are made on the internet, other people have to consider does the person have the resources or tenacity to carry it out. With Alex Jones, he visits people he talks about, so he does have resources. Now Alex could be just a "Rick Flair" impersonator but he began to put more people on edge with anger sometime brandishing weapons on his shows and making allegation about Jews in Charlottesville Va. Although, Rod does think many NAZI impersonators at function are more than not, likely also impersonated by opposition to arouse tension. So, Rod has watched Mr. Jones for a long time and still catch him not so often over the last couple years, but many others in the liberal parties, Politicians, Actors, Actresses, should be temporarily banned at times or permanently banned not for speech; but for good cause, action associated with the free speech, that they are allowed. Rod will talk about this in depth. JTA. “Alex Jones Says Jewish Actors Posed As Klansmen In Charlottesville.” The Forward, 15 Aug. 2017, forward.com/fast-forward/379925/alex-jones-says-jewish-actors-posed-as-klansmen-in-charlottesville/ Because of this anger, yes, Rod removed Corey Booker and Maxine Waters from his list several times. It is they who have the anger but it may be causation for another to act out violent actions. More legal terminology coming.
Rod believes Twitter and Facebook failed to act in the anger at Charlottesville, Virginia which left one dead and many injured. Rod believe that Twitter and Facebook failed to act in Colin Kaepernick kneeling angry protest in the first two weeks which he believes was a subsequent cause to the Las Vegas shooting. Differently Rod responsible shut his list down for two weeks so no one could communicate during the peak of the anger from the kneeling and media sensationalism of it. At least Facebook should be able to foresee the causation of angry "flash-mobs" that show up in cyberspace especially when their sister "flash-mob" has shown up in person physically on ground locations; examples are the overthrow of Egypt, Libya, and Syria. One, the Arab Spring, which Zuckenberg Facebook was alleged to be involved in. He downplayed it. 2012, Chen, Adrian. “Mark Zuckerberg Takes Credit for Populist Revolutions Now That Facebook's Gone Public.” 02/02/2012 Gawker, gawker.com/5881657/facebook-takes-credit-for-populist-revolutions-now-that-its-gone-public When Rod saw the people attempt to gather in an angry manner, he pulled the plug on their activity, for America not to be overthrown by this anger, coordinated with live physical on ground "flash-mobs" they, Congress, Justice Department, or Supreme Court by suit, will have to require social media to pull the plug when these angry "flash-mobs" form; even if it is at the highest level, Hillary Clinton, President Obama, Labron James, or even the President of the United States, or Middle East, or European Union, Russia, or China may be involved. This is not interfering with free speech coupled with violent "flash-mobs" whether virtual or on the ground; they are not guaranteed speech, no more than falsely yelling "fire" in a crowded movie theater. It really is not about spreading descent and discourse from other countries that is the major threat for America Politics and Elections. It is not Russia, maybe Iran, in Congress and America saying that they hate America, pledge, and flag. It is not Russian boycotting and picketing American Holidays like Christmas. It is not Russia desecrating the American Flag, they showed it respect at the Olympics. More on this issue coming. Rod was taught about forming "flash mobs" in Journalism, but it was taught as people gathering to do dance duo(s), I don't think that is really why media studies people are taught how to form "flash-mobs" what the heck is a "flash mob." Dancing is great, but when Bill Clinton was in office, a "flash mob" gathered in Rwanda full of anger and murdered one million people before it was stopped over a 3 month period.
“Is It Illegal to Yell ‘Fire’ in a Crowded Theatre?” Law Stack Exchange, law.stackexchange.com/questions/28853/is-it-illegal-to-yell-fire-in-a-crowded-theatre "Law The origin of the phrase is from the Supreme Court of the United States in the case Schenck v. United States, 249 U.S. 47 (1919). It specifically rules on the limitation of freedom of speech (first amendment): The original ruling is this: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. As pointed out by @phoog, this does not saying anything about the lawfullness of shouting "fire", it says that if your speech creates a clear and present danger, the first amendment will not protect you, even if the danger does not result in actual harm."
Twitter CEO spoke that he believes that Twitter is the proper place to have all types of dialogue. Rod and he are in agreement. Some subjects are rude, not nice, insulting, sensitive, but need to be able to be talked about in such places like Rod's research and educational sites. If no one talks, the problems still do not go away, but are left misunderstood as inferior. And we can not walk through life blind and inferior. So Rod's policy is that as long as you are not angry, you are welcome to his blog, or have been welcomed to his past works, to explore different thoughts of different people. But, this privilege to explore does not give you right to try to change a person with different thoughts from you. He will write more on this issue.
Inferior on a subject and given inferior word terminology and information leads to false premises, false analysis, and false conclusions to investigation which may lead to false prosecution on bad evidence. I think the CEO said they are challenging 5 million customers a day. I think Congress was demanding that accounts be verified names of the person using it. Well, that was one reason not to develop on other platforms, differentiating itself from the others, that many chose Twitter. Thousands of these fan accounts bringing entertainment and followers to Twitter.
The fan who wanted to support a star by opening up an account with the star's name and face, when the star hasn't for whatever reason, and keeping that star's legacy alive sending the Star free advertisement, maybe increasing the stars’ revenue sales whatever he, the Star, has for sale on other platforms, even though that Star did not use Twitter.
The fan who wanted to support a star by opening up an account fan page for a Star that has passed to keep his legacy living; certainly the name of the account could not be a dead star. Thousands or millions of these fan accounts bringing entertainment and followers to Twitter may have existed.
Tweeting with a stage name; stage names are not the persons real name in entertainment. Many in entertainment do not use their real names because they don't draw as many people than does a stage name or a theme based name according to subject.
Tweeting with a stage name; stage names are not the persons real name in entertainment may be used by many people in other countries because they do not have freedom of speech and their real name would put their lives in jeopardy. So many may not be malicious characters but people that lack freedom to speak but add value; the needed conversations that are welcome in education, entertainment and research sites' platforms.
Inferior on a subject and given inferior word terminology and information leads to false premises, false analysis, and false conclusions to investigation which may lead to false prosecution on bad evidence.
The person in a troubled area Tweeting with a stage name; stage names are not the persons real name in entertainment. This person could not use a real name because they may be killed because many operate in war torn areas. But, they give vital intelligence to the State Department, CIA, and Military. If not for them, and now you force them to verify, a girl was chopped up last month and fed to the dogs in the street in one of those Providences for speaking on Twitter and other social media, our troops have to risk their lives to go into these areas, highly noticed, to gather the same intelligence, not as good as a local for sure. You may now cost more our soldiers, intelligence people, and volunteers helping the United States more of their lives; and a high financial cost that may be provided free.
A Good Bot is an aggregated or compiled group of information assimilated to be dispersed automatically over another platform. For example, a person who has done twenty years research, and decides to give it away free in an entertaining method using 140 characters at a time. So, he spends months putting this information together to Tweet out, over and over, at a set time, through infinity maybe. You can design these to fit whatever platform you may want to work on. At one time you could transform yourself into a Good Bot by using some tools like Tweet Deck, or today some others maybe, so your tweets came out at specific times for given times for several days or more.. Rod generally had suspicion when you yourself was a Bot because your tweets came out perfect day after day at a certain time, maybe every one hour or every half hour or at a certain hour. There is no malicious act going on here just people using technology as it is supposed to be used to make their and your experience more entertaining and meaningful. Thousands, if not millions, may be doing this on Twitter. In addition, they may choose to aggregate all of Einstein's work, Shakespeare's work, a series of math or science calculation into similar Bots to fit the 140 character platform on Twitter. Or some mom wanted to aggregate all of her food recipes, or for that matter, a person is using a stage name themed to all Italian or Russian recipes into a bot to work on the Twitter platform. Or someone wanted to list, well there is tons of things to put on the automatic bots like news, history, unproven conspiracy theories that still needed research work, statistics, and many others. So, just do not use the word loosely and mess up important research and education because you don't understand entertainment, education, and how research work on Twitter. Rod used Good Bots in list making. They kept the list moving 24 hours a day and provided reliable content and entertainment to Twitter users.
An Algorithm to Detect anger levels would be a great innovation if invented by the tech folks.
Rod talked about Plan A and Plan B failing those who may have been perpetrating them for and after the 2016 Presidential Elections doctheshow.com/Tax_Day_April_15.html or doctheshowbackup.blogspot.com/ But, He visions Plan C is already set up for the 2020 elections. He will go into more detail in the next couple days.
Plan A: It has been two years since the 2016 Election and not one person has been found guilty of the highly publicized with many books and profits made about the subject. From Rod understanding an email was leaked to some third party to wiki-leak, and the Russia Gov't newspapers spreading the information to others in the United States to affect the outcome of the 2016 that award Donald Trump the victory instead of Hillary Clinton.
Two companies have closed because of the investigation. In Rod's opinion they were both scapegoats to assert that something happened in the 2016 election because none of the above have closed and still remain vibrant on Twitter that were originally accused. One of the business, Cambridge Analytical, activities occurred a couple years before the 2016 election, similar and nothing much different from reported 200 other companies with the same access allowed to the same material, and it was reported that they did not do work in the 2016 election. The second company was indicted but from what Rod read, they may be guilty of financial crimes or using someone's social security number improperly. But, they were doing advertising work with all the parties in the election running satire cartoon adds and in Rod's opinion had little substantial influence in the 2016 because they are no names, doing some of the above mentioned activity, and Social Media is driven by popular well know people verses a bunch of no names stuffed in a small office with a couple hundred thousand Tweet or Facebook followers, sending out satirical adds about a candidate. There are already plenty of those free on the internet.
Rod believes Since Plan A accused are all still in play on Twitter and Facebook, non-have been closed or banned, it is likely this will again surface sometime here between now or in 2020 as Plan C. It does not matter whether Republicans or Democrats or Anonymous Party or a similar network next time secret whatever, fabricate another email, or whatever, feed this stolen information; all that may matter is that it is something similar with the same players to bring twice the accusation of injustice in 2020. It does not matter who wins the Election, as long as the injustice is perceived. Rod had the first three Newspapers in some of his list; but deleted the first two of them when there was accusation that they had spread discourse into America. He never removed Reuters because of their great reputation in the world for news.
Alex Jones was banned from Twitter, but none of the Russian media initial accused of spreading information into the United States to spread discourse in America. Putin is a bad man but his Twitter account and the Russian Government accounts are still open. Why is wikileaks still on Twitter communicating with millions and millions through those questionable "impression numbers" maybe, on Twitter? Espionage, maybe, is not protected free speech and even though Twitter is following European Law, are they not still an American company under American Law?
Rod only banned one person from his list permanently and that was Wikileaks but he never thought about putting Snowden in any list. He does not have anything personally against the two, but they may have been involved in espionage against the United States and he does not approve of people stealing top secret or classified information from the United States, and releasing it to the public; unless it has been declassified; emails are or should not be classified or top secret. He later temporarily removed people who retweeted Wikileaks on a regular basis.
Inferior on a subject and given inferior word terminology and information leads to false premises, false analysis, and false conclusions to investigation which may lead to false prosecution on bad evidence. Which leads those to be suspicious of actual truth as perceived misinformation.
Many thought President Obama was Muslim at some point in his life other than birthers. His dad was Muslim. America does not have many Americans Christians change their name from Barry to Barrack or Hussein. Hussein sounds very Muslim. President Obama attacked some Christians, mostly White Southern Christians, guns and Bible stuff, on occasions but overcompensated to appease celebrating around Christian Holidays. Many Americans have short memories, little grudges, in politics. Hillary attacked many conservative Christians, not just White Southern Christians. Trump supported conservative Black Christians and White Christians. Many questioned his sincerity in doing so, but he put on a good show. Trump seemed sincere. He changed his mind a lot.
Like others, Rodney thought Trump won because he said he was Christian, did not back down from Christian issues, and guaranteed to proceed to support Christian values. Rodney thought another reason Clinton lost maybe because of her history. Whether Comey, Russia, Minister Farrakhan, Alex Jones, the 50% of Americans that Hillary called Deplorable Americans, the NRA, the Bernie disappointed that they cheated him, Benghazi lies losing Military vote, the anti-establishment Americans against both Democrats and Republicans, the many offended American Christians under attack, or the folks holding those signs about Bill Clinton may have lost her the #metoo(s) helped is speculation of the alternative to the Russian Conspiracy Theory having little substantial effect on 2016 Elections.
Impeachment involves: Reputation, Opinion of a close friend, Specific, Unconvicted Acts of Untruthfulness, Prior Convictions, Felonies, Chimen-Falsi when a person has lied or made intentional false statements before a court or judge, and Perjury.
"Criminal cases, the law is not in dispute. Rather, controversy centers around what the facts are and how the law should apply to them. Fact-finding is therefore central to the criminal trial indeed it is central to civil trials as well and too much other lawyering activity. The facts that must be proven or disproven those that help to establish or undermine the existence of any of the basic elements of a crime — the act, attendant circumstances, mental state, and results or to support or-attack an affirmative defense. — - Facts relevant to any or all elements of a crime or defense might be in controversy."
This research paper is written on Criminal Law by Rod Jackson. He will use the reference text Criminal Law, Concepts and Practice, Second Edition, Carolina Academic Press, Authored by Ellen S. Podger, Peter J. Henning, Andrew E. Taslitz, and Alfredoo Garcia. (Podger, Henning, Taslitz, and Garcia) First, Rod will list some defenses that may prevent Prima Facia Cases, then he will write a little bit on some of these topics: Ex Post Facto, The Mercy Rule, Conspiracy and what Government has to prove, Strategy, Exclusion of [exculpatory] evidence as unconstitutional, Impeachment of witness, law on Outrageous Government conduct, what it takes to prove a case, hearsay evidence that usually won't make it to a competent court of law, legal argument against scumbags testifying in front of Congress and reasons to appeal to higher court, entrapment elements, a person with a history of false testimony not testifying, examples of Mens Reus, Actus Reus, discovery in criminal trials, Jurisdiction and venue, specific intent, that secret informant may be a bug, room tap, placed anywhere a person goes in your business; sweeping the White House for taps each week, Planting Evidence and Criminal Framing a person is a crime against that person by the Government vs Entrapment is unconstitutional acts by the government, and impossibility as a defense to committing a crime. Note. Rod has never taken a criminal law course in College and has not read any law books at length before reading this text. So, he probable ignorant on some of this stuff.
Rod’s Hypothesis: The Conspiracy Agreement: Russia Conspiracy Theory to “Take Down” Hillary Clinton’s opposition thru Furtherance, Foreseeable with Deceptive Practices of Coercion.
(c) Attempt to intimidate the person by threats or force.
(a) Where physical force or the immediate threat of physical force is used, for a category B felony by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000.
(b) Where no physical force or immediate threat of physical force is used, for a misdemeanor.
"§6.02 Proof Beyond Reasonable Doubt "The element of causation is satisfied if the State proves beyond a reasonable doubt that the acts of the defendant the substantial cause of the act."
"If the intervening cause is merely a coincidence rather than a response, then the question is whether it was foreseeable."
"Due Process Clause of the Fifth Amendment - the presumption of innocence, and the related requirement of proof beyond a reasonable doubt to sustain a criminal conviction."
"The evidence, in other words, must be or such persuasive quality that a jury could reasonably find the essential elements beyond a reasonable doubt on the basis of that evidence"
"The Court has recognized that the presumption of innocence requires that the accused be acquitted so long as the government has not proved every element of the offense beyond reasonable doubt, without any requirement that the accused offer evidence (or indeed lift a finger) in his defense. ****"
"Reversal - The reason is that the prosecutor did not introduce sufficient evidence in its case-in-chief on the causation element and therefore the charge should be dismissed at point in time."
"The first cause-in-fact requires the government to prove that but for the actions of the defendant the result would not have happened when it did."
"The second cause-in-fact is that the defendant be the proximate cause of the result."
"State needed to prove not defendant, but the prohibited result would not have occurred but for the conduct of the defendant, but also that the defendant's conduct was the legal (or proximate) cause of the prohibited result."
"In Kotteakos v. United States, 328 U.S. 750 (1946), the Court reversed the conspiracy conviction for a wheel conspiracy involving a central "hub" figure, whose associates were the "spokes." In Blumenthal v. United States, 332 U.S. 539 (1947), the court upheld a conviction involving a chain conspiracy, with several "links" leading linearly from a source; each link may not know the entire chain, but the links eventually lead back to the source."
Reasonable doubt is that doubt engendered by an investigation of all the proof"
Here in this article, Michael Cohen taking down President Trump with a dozen secret tape-recordings by his own lawyer; supporting Rod’s hypothesis: The Conspiracy Agreement: Russia Conspiracy Theory to “Take Down” Hillary Clinton’s opposition thru Furtherance, Foreseeable. with Deceptive Practices of Coercion.
In another article, Peter Strzok and Lisa Page talk about an Insurance Policy to take down Trump.
In the three cases with the women spokes attempting, with the intent to compel Rod to abstain Rod from doing an act which they have a right to do or abstain from doing. One, attempted to frame Rod, that could have caused him severe harm, with a phone call with false statements about gifts and taxes. She reached the point of intent when someone in the link erased the tape from Rod’s message service; his only proof of what she did. The Doctor that wrote the false statement in his records, after 10 complaints, and a lot pressure, changed the statement admitting it was a lie at Rod’s next visit in August 2018. But, she had already reached the point of intent to compel Rod to abstain Rod from doing an act which they have a right to do or abstain from doing. He filed a similar complaint against the Nurse, but he saw her in August 2018, but did not bring up the issue, because he had already disproved her many lies, concerning medicine and medical issues with documentary evidence. she had already reached the point of intent to compel Rod to abstain Rod from doing an act which they have a right to do or abstain from doing.
(c) … is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
(d) Possession of material to be employed in the commission of the crime.
Rod believes one of the spokes furthered the Russian Conspiracy Entrapping/Framing when the Government failed to stop a Russian company contacting and creating a paper-trail to many Conservative Americans that had no idea of the Russian company was Russian until they were indicted late after the 2016 Election which they plead not guilty. Rod believes Papadopoulos furthered the Russian Conspiracy Entrapping/Framing when leaking a story about Russian email framing a meeting with many of Trumps campaign team. Rod has heard no more of that case since they pleaded not guilty; he thought it was supposed to be in the summer of 2018.
Rod believes they were trying to frame him to attempt to pull his Twitter list into the Russian Conspiracy, as several spokes later placed Russian information into his list and other social media that he could not remove. Early 2016, Rod believed that the Russian Conspiracy Entrapping/Framing was furthered by one of the spokes that attempted to have Rod attend a seminar which had one of Edward Snowden's past lawyers by placing flyers in the bathrooms that he used at a library.
Later, in 2017 the spokes had two new doctors, he lost his long time doctor, write false statements in his medical records, one about they had a conversation that Rod revealed he was now smoking cigarettes and she desperately tried to stop him, he never smoked anything in his life. Then, July 2018, when those came under investigation, another spoke in the wheel had a new nurse fabricate to support the lies of the two doctors, backdated into Rod's medical Records, in which Rod was alerted about the fabricated document, as he got a copy that he was not supposed to see, in his opinion. After a lot of complaints and pressure, the Doctor admitted the statement was a lie about him smoking. These were attempts to go after Rod's credibility of statements already in his medical records that this would contradict. The spokes kept growing in the Russian Conspiracy Entrapping/Framing against Americans furthering it when Mark Warner contacted several Russian operatives responsible for fabricating lies in a document paid for by people connected to Clinton.
Another spoke came from the Justice Department when a senior official named Bruce Ohr was demoted in 2017. His wife firm, Fusion GPS, made money off the Trump Dossier that her firm put together, gave back to the "hub" the Government, to launch FISA warrants. Another spoke furthered the Russian Conspiracy Entrapping/ Framing reach out to Rod April 2015 to further try to frame him by leaving a recording on his answering service for tax day about some gifts that he did not give to change his tax situation consideration for a prior year or maybe 2018, which the "hub" later erased but Rod recorded the message to preserve the evidence. In correlation to all this entrapment and framing, the "hub" formed another spoke to further the conspiracy called "a special counsel."
You see, if the "Hub" is the Government involved, itself, in misconduct, removing several spokes does not stop the wheel. The network in the Government has to further The Conspiracy Entrapping/ Framing because they are the now the spokes. But, who now prosecutes the wheel. It was reported on 09/13/2018, that Manaford had cut a deal; maybe it was because of the weakness of the first case and the chance of another embarrassment by both parties.
"Although the State may submit alternate theories of causation to the jury, if supported by the evidence, it must establish in its case-in-chief a Prima Facie basis for each theory that goes to the jury."
"FRE (The Federal Rules of Evidence are the governing rules in Federal Cases) 404 generally prohibits using evidence of character or character traits to prove that a party or witness acted consistently with those traits on a particular occasion."
"In addition to the potential detrimental effect of time on his memory, ... was also inherently limited as a witness because he was not present."
"28 U.S.C. § 2254 (D)(2). Rephrased, "a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong but actually unreasonable." Taylor V. Maddox, 366 F.3d 992 (9th Cir 2004)."
Another spoke went after Cambridge Analytical, but Rod believes this may be the law that they may be violating when they consider taking action against Cambridge Analytical.
“2.. Ex Post Facto. The Constitution prohibits ex post facto (after the fact) laws.
“Former Feinstein Staffer Hired Fusion GPS, Christopher Steele.” The Federalist, 27 Apr. 2018, thefederalist.com/2018/04/27/confirmed-former-feinstein-staffer-hired-fusion-gps-christopher-steele/. "A declassified congressional report confirms prior reporting by The Federalist that Daniel Jones, a former staffer for Sen. Dianne Feinstein (D-Calif.), hired Fusion GPS and Christopher Steele after the 2016 election to push the anti-Trump Russian collusion narrative."
"PIRRO: Then, Dianne, you've been sitting on this letter for almost two months. You let Brett Kavanaugh go through days of Senate hearings, meeting with Senators, answered then an additional 263 pages of 1,300 follow-up written questions, and now, you want to character assassinate this man who has undergone six FBI full field investigations where no such allegation resembling this anonymous nonsense has ever surfaced? What impact will Sen. Feinstein's decision have on the confirmation process? 'America's News HQ' panel weighs in. Dianne, as a ranking member of the committee interviewing Kavanaugh, how could you possibly let a moment pass without addressing the issue when Kavanaugh was right in front of you and would have had the opportunity to respond? What were you thinking? Are you stupid? Why would you let it go? Let me tell you why you let it go, Dianne. Because even you didn't believe it. What other reason could there be? Now, I know about women who have been sexually assaulted and the kind of pain they go through. It is different from other crimes. It lingers and rears its head throughout their lives. I have prosecuted on their behalf for decades. One of the ways that we establish their credibility is with how recent their complaint is. A recent outcry is enormously powerful. An anonymous one almost 40 years later, not so much, Dianne. But silence? I guess, I shouldn't be surprised."
Rod only have a couple more days of writing and no more post on this blog. Rod relationship is with God. He has no connection in any conspiracies and has no relationship with President Trump other than a United States citizen that wish the President well. But, he does have a problem with allowing a scumbag, as he believes tried to frame the President testify to anything. And, a prosecutor that would allow that scumbag to testify and give him rewards, I would probable not trust anyone he brought before a courtroom. Prosecutors have discretion when allowing witnesses to testify.
(1) (a) making knowingly false representations designed to induce the belief that such conduct is not prohibited."
(2) "A person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment. The issue of entrapment shall be tried by the Court in the absence of the jury."
Rod saw John Carry with his new book stating that Watergate allowed criminals to testify in Congress and he even showed a clip of one of their opening statements. If Rod recalls correctly, he said that he knew he would serve forty or fifty years in jail for what he was about to say; but still would testify about his involvement. Now. Did he later get a deal? Rod does not know the answer. But, he was willing to testify assumable before he got a deal. He did not sound like he was getting a deal. Or, he was not sincere omitting the fact; lying.
So now we have the Muller deal cutters that would only testify if they got deals which require a certain amount of saying what the Muller team wants to hear or the deals want be so sweet. I won’t lose any sleep if they say Putin and Trump are ancestral cousins with the same Grandpa. But, I would not equate their duty for the country as I would a man willing to tell his story with a forty-year sentence having not cut a sweep deal. In Podger, Henning, Taslitz, and Garcia P. 159, they discuss, comparable, defendant being the Government Hub, “A defendant charged with a specific intent crime can be testified; strongly tempted to testify falsely or wish to present witnesses who will testify falsely in the hope of securing an acquittal. There is no dispute that defense counsel may not call witnesses who intend to commit perjury. ABA Model Rules of Professional Conduct, Rules 1.2, 3.3, 3.4. Counsel for the defense is presented with some competing ethical concerns when it is his or her client that has testified falsely on the witness stand. See ABA Model Rules of Professional Conduct, Rules 3.4. See also Nix v. Whiteside, 475 U.S. 157 (1986).” Of course, in Rod’s opinion, a guilty verdict of any kind of something to do with Russia may be an acquittal for what the spokes, Hub, the Wheel have been up to for the last two years.
“Legal Dictionary - Law.com.” Law.com Legal Dictionary, dictionary.law.com/Default.aspx?selected=859. "hearsay (redirected from Inadmissible as Hearsay) Also found in: Dictionary, Thesaurus, Medical, Financial, Encyclopedia. Hearsay A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. It is the job of the judge or jury in a court proceeding to determine whether evidence offered as proof is credible. Three evidentiary rules help the judge or jury make this determination: (1) Before being allowed to testify, a witness generally must swear or affirm that his or her testimony will be truthful. (2) The witness must be personally present at the trial or proceeding in order to allow the judge or jury to observe the testimony firsthand. (3) The witness is subject to cross-examination at the option of any party who did not call the witness to testify. In keeping with the three evidentiary requirements, the Hearsay Rule, as outlined in the Federal Rules of Evidence, prohibits most statements made outside a courtroom from being used as evidence in court. This is because statements made out of court normally are not made under oath, a judge or jury cannot personally observe the demeanor of someone who makes a statement outside the courtroom, and an opposing party cannot cross-examine such a declarant (the person making the statement). Out-of-court statements hinder the ability of the judge or jury to probe testimony for inaccuracies caused by Ambiguity, insincerity, faulty perception, or erroneous memory. Thus, statements made out of court are perceived as untrustworthy. Hearsay comes in many forms. It may be a written or oral statement; it also includes gestures. Essentially anything intended to assert a fact is considered a statement for the purposes of the Hearsay Rule. A nodding of the head may be a silent assertion of the word yes. A witness pointing to a gun may be asserting, "That is the murder weapon." Even silence has been accepted as a statement, as when a passengers' failure to complain was offered to prove that a train car was not too cold (Silver v. New York Central Railroad, 329 Mass. 14, 105 N.E.2d 923 ). Not all out-of-court statements or assertions are impermissible hearsay. If an attorney wishes the judge or jury to consider the fact that a certain statement was made, but not the truthfulness of that statement, the statement is not hearsay and may be admitted as evidence. Suppose a hearing is held to determine a woman's mental competence. Out of court, when asked to identify herself, the woman said, "I am the pope." There is little question that the purpose of introducing that statement as evidence is not to convince the judge or jury that the woman actually is the pope; the truthfulness of the statement is irrelevant. Rather, the statement is introduced to show the woman's mental state; her belief that she is the pope may prove that she is not mentally competent. On the other hand, a defendant's out-of-court statement "I am the murderer," offered in a murder trial to prove that the defendant is the murderer, is hearsay. The Federal Rules of Evidence outline the various types of statements that are excluded by the Hearsay Rule, and are thus admissible in court. These exceptions apply to circumstances believed to produce trustworthy assertions. Some hearsay exceptions are based on whether the declarant of the statement is available to testify. For example, a witness who has died is unavailable. A witness who claims some sort of testimonial privilege, such as the Attorney-Client Privilege, is also unavailable to testify, as is the witness who testifies to lack of memory regarding the subject matter, or is too physically or mentally ill to testify. These definitions fall under Rule 804 of the Federal Rules of Evidence. There are also situations where hearsay is allowed even though the declarant is available as a witness. These situations are outlined under Rule 803 of the Federal Rules of Evidence. Hearsay Exceptions: Availability of Declarant Immaterial Present Sense Impression. "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter," is admissible hearsay (Fed. R. Evid. 803(1)). An example is the statement "That green pickup truck is going to run that red light."
(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.
(C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness.
(B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
(C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation Concerning Boundaries or General History. A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.
(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect admissibility.
(B) could be proved by evidence of reputation.
“An affirmative defense such as choice of evils provides a legal justification for otherwise criminally culpable behavior. A defendant who asserts an Affirmative defense admits the doing of a charged act, but seeks to justify the act of grounds deemed by law to be sufficient to avoid criminal responsibility.(Podger, Henning, Taslitz, and Garcia P. 630) For instance, one type of case is "DIMINISHED CAPACITY.""[T]he diminished capacity defense is available in West Virginia to permit a defendant to introduce expert testimony regarding a mental disease or defect that rendered the defendant incapable, at the time the crime was committed, of forming a mental state that is an element of the crime charged." "Extreme emotional disturbance . . . is . . . an affirmative defense upon which the burden of persuasion rests on the defendant. * * "To sustain his burden of establishing extreme emotional disturbance by a preponderance of the evidence, the defendant must persuade the trier of fact that: (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code; (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness; and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions." * * *” (Podger, Henning, Taslitz, and Garcia P. 690) The defendant became distress from working 18 to 20 hours a day, seven days a week, for an extended period of time, in a self-owned business that a Psychologist determined to be OCD, obsession compulsion disorder, ie: work-aholic. In addition, his wife was eight months pregnant and he was pretty much in a state of a different celibacy abstaining in marriage but with no sexual relations for that period of time, and after a drink, beer, in a state of confusion, extreme emotional reaction, he was out of town from his wife, about to turn in for the night, missing her, in his twenties, and masturbated in public, but he initially thought it was private, seen by a man and woman, simultaneous, which was definitely an extreme emotional reaction, seen by several people that called police. The Defendant was given an open beer, grog, by two strangers that the defendant had met moments earlier. They were working in the same field so he had no reason to suspect that the grog, beer, may have been spiked with something. He was in a state of confusion, distressed, felt bad and depressed, and set on a curb for about a half hour waiting on police when he could have just got in his truck and drove off. He stood up when he saw the officer, and said, "here I am" He was arrested and charged with indecent exposure and release after a couple of hours because he was on a business trip and presented no harm to the public. He received a breathalyzer and was not public-intoxicated. He pleaded no contest in court and later remanded to see a psychologist or psychiatrist for mental illness. He was diagnosed above. On his return to court, he received no jail time and release to the care of his dad. Now, many laugh at these kind of mental break downs; but mental illness is no laughing matter, even if it temporary. He continued with a normal life after that extreme breakdown.
§ 2.04. "Ignorance or Mistake (1) Ignorance or mistake as to a matter of fact or law is a defense if:"


Is Defendant entitled to an offset under 21 V.S.A. §624(e) for the workers’ compensation benefits paid and/or payable on account of Claimant’s death from the proceeds of a life insurance policy?
1. Claimant was an employee and Defendant was her employer within the meaning of Vermont’s Workers’ Compensation Act.
2. On October 6, 2009 Claimant died from complications resulting from surgical treatment of a work-related knee injury. Defendant began paying workers’ compensation death benefits to her estate accordingly.
3. At the time of her death Claimant had a life insurance policy that named her husband, David Dunn, as beneficiary. Mr. Dunn has collected death benefits from this life insurance policy since Claimant’s death.
4. Claimant’s life insurance policy provided for a lump sum payment upon proof of her death. The policy also provided for a payment to Claimant’s children in the amount of $3,000.00 per child for a maximum of four years while they attend college.
5. Defendant seeks reimbursement of the death benefits it has paid to date, as well as a credit against future benefits, to the full extent of Mr. Dunn’s receipt of life insurance proceeds.
1. These cross motions present a purely legal issue for determination – in order to prevent a double recovery, does 21 V.S.A. §624 require reimbursement and offset for the workers’ compensation benefits that Defendant owes on account of Claimant’s death from the proceeds of her life insurance policy? As the material facts are not disputed, summary judgment is an appropriate vehicle for resolving this issue. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996).
(a) Where the injury for which compensation is payable under the provisions of this chapter was caused under circumstances creating a legal liability to pay the resulting damages in some person other than the employer, the acceptance of compensation benefits . . . shall not act as an election of remedies, but the injured employee or the employee’s personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section.
(e) In an action to enforce the liability of a third party, the injured employee may recover any amount which the employee or the employee’s personal representative would be entitled to recover in a civil action. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workers’ compensation insurance carrier for any amounts paid or payable under this chapter to date of recovery, and the balance shall forthwith be paid to the employee or the employee’s dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits. Reimbursement required under this subsection, except to prevent double recovery, shall not reduce the employee’s recovery of any benefit or payment provided by a plan or policy that was privately purchased by the injured employee, including uninsured-under insured motorist coverage, or any other first party insurance payments or benefits.
4. Claimant argues that the plain meaning of 21 V.S.A. §624, read as a whole, requires reimbursement and offset only in situations where an injured worker has recovered damages from the third party responsible for his or her injuries. As benefits payable under a life insurance policy are not the equivalent of damages from a tortfeasor, Claimant argues, the statute does not grant Defendant any right to reimbursement. I agree.
6. Defendant equates the benefits payable under Claimant’s life insurance policy with the term “damages” as used in §624. The two concepts are not equivalent, however. The term “damages” denotes “the money payable by a tortfeasor who is liable for injuries caused by his tortious act.” The Travelers Companies v. Liberty Mutual Insurance Co., 164 Vt. 368, 373 (1995), citing Wincek v. Town of West Springfield, 399 Mass. 700, 702 (1987) (quoting Restatement (Second) of Torts §12A (1965), defining “damages” as “a sum of money awarded to a person injured by the tort of another”). In contrast, a benefit paid under the terms of an insurance policy is “a payment made in performance of a contractual obligation,” not a payment of “damages.” Wincek, supra at 703 (internal citation omitted).
7. With this distinction in mind, even accepting that Claimant’s life insurance proceeds represent monies recovered from a “third party,” Travelers Companies v. Liberty Mutual, supra at 372, they still are not an appropriate source of reimbursement. Rather, to attach these monies Defendant must show both that they come from a third party and that they represent damages. Id.
8. Construed as a whole, and reading all parts of the statutory scheme in harmony, In re Jenness, 2008 VT 117, ¶24, I conclude that an employer’s right to reimbursement under §624(e) only attaches to damages that the injured worker has recovered from a third party tortfeasor. See, Progressive Casualty Ins. Co. v. Estate of Keenan, 2007 VT 86, ¶11. I further conclude that the benefits paid under the terms of Claimant’s life insurance policy do not constitute “damages.” That being the case, I conclude that Defendant has no right to reimbursement or offset from them.
1 Defendant acknowledges that it is only entitled to reimbursement and offset to the extent that the benefits payable under Claimant’s life insurance policy represent economic, as opposed to non-economic, damages. Traveler’s Insurance Co. v. Henry, 2005 VT 68. Beyond summary judgment in its favor as to its right to reimbursement, it seeks a hearing to determine the extent of these.
9. Claimant has submitted a request under 21 V.S.A. §678 for attorney fees totaling $3,088.50. The decision whether to award attorney fees lies within the Commissioner’s discretion. Among the factors to be considered are whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003). Having reviewed the specific billing entries, I conclude Claimant is entitled to recover these fees.
Claimant’s Motion for Summary Judgment is GRANTED. Defendant’s Motion for Summary Judgment is DENIED. Claimant is awarded attorney fees in the amount of $3,088.50.
Dated at Montpelier, Vermont, this 15th day of November 2011.


the hospital or critical access hospital has an agreement (as defined in paragraph (3)(A)) only with such hospital’s designated organ procurement agency.
the waiver will assure equitable treatment of patients referred for transplants within the service area served by such hospital’s designated organ procurement agency and within the service area served by the organ procurement agency with which the hospital seeks to enter into an agreement under the waiver.
except that nothing in this subparagraph shall be construed to permit the Secretary to grant a waiver that does not meet the requirements of subparagraph (A).
Any hospital or critical access hospital seeking a waiver under subparagraph (A) shall submit an application to the Secretary containing such information as the Secretary determines appropriate.
prior to making a final determination on such application under subparagraph (A), offer interested parties the opportunity to submit written comments to the Secretary during the 60-day period beginning on the date such notice is published.
the term “organ” means a human kidney, liver, heart, lung, pancreas, and any other human organ or tissue specified by the Secretary for purposes of this subsection.
is designated by the Secretary as an organ procurement organization payments to which may be treated as organ procurement costs for purposes of reimbursement under such subchapter.
The Secretary may not designate more than one organ procurement organization for each service area (described in section 273(b)(1)(E)  of this title) under paragraph (1)(F).
Section 273(b)(1)(E) of this title, referred to in subsec. (b)(2), was redesignated section 273(b)(1)(F) of this title by Pub. L. 106–505, title VII, § 701(c)(1), Nov. 13, 2000, 114 Stat. 2347 and Pub. L. 106–554, § 1(a)(1) [title II, § 219(b)(1)], Dec. 21, 2000, 114 Stat. 2763, 2763A–29.
1997—Subsec. (a). Pub. L. 105–33, § 4201(c)(1), substituted “critical access” for “rural primary care” wherever appearing.
Subsec. (b)(1)(A)(ii). Pub. L. 105–33, § 4642, substituted “2 years (4 years if the Secretary determines appropriate for an organization on the basis of its past practices)” for “two years”.
1994—Subsec. (a)(1)(A)(iii). Pub. L. 103–432, § 155(a)(1)(A), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: “require that an organ procurement agency designated by the Secretary pursuant to subsection (b)(1)(F) of this section be notified of potential organ donors; and”.
Subsec. (a)(1)(C). Pub. L. 103–432, § 155(a)(1)(B), added subpar. (C).
Subsec. (a)(2). Pub. L. 103–432, § 155(a)(1)(C)(ii), added par. (2). Former par. (2) redesignated (3).
Pub. L. 103–432, § 155(a)(1)(C)(i), redesignated par. (2) as (3).
1989—Subsec. (a)(1). Pub. L. 101–239 substituted “hospital or rural primary care hospital” for “hospital” in two places preceding cl. (i) of subpar. (A).
1988—Subsec. (a)(1)(B). Pub. L. 100–360 added Pub. L. 100–203, § 4039(h)(2), see 1987 Amendment note below.
1987—Subsec. (a)(1)(B). Pub. L. 100–203, § 4039(h)(2), as added by Pub. L. 100–360, substituted “in” for “In” at beginning.


25-202. Actions for the recovery of title or possession of real estate or foreclosure of mortgages. (1) An action for the recovery of the title or possession of lands, tenements, or hereditaments, or for the foreclosure of mortgages thereon, can only be brought within ten years after the cause of action accrues. No limitation shall apply to the time within which any county, city, town, village, other municipal corporation, public power and irrigation district, public power district, public irrigation district organized under Chapter 70, article 6, irrigation district organized under Chapter 46, article 1, or natural resources district may begin an action for the recovery of the title or possession of any public road, street, or alley, other public or political subdivision grounds or lands, or city or town lots.
(c) If the mortgage creditor files an affidavit to the effect that the mortgage is unpaid and is still a valid lien, the affidavit is filed before the cause of action is barred under this section, and the affidavit is filed for record in the office of the register of deeds; the cause of action is not barred until ten years after the date the affidavit is filed. The period of ten years shall not be extended by nonresidence, legal disability, partial payment, acknowledgment of debt, or promise to pay.
Source: R.S. 1867, Code § 6, p. 395; Laws 1869, § 1, p. 67; Laws 1899, c. 79, § 6, p. 335; R.S. 1913, § 7564; C.S. 1922, § 8507; Laws 1925, c. 64, § 1, p. 220; C.S. 1929, § 20-202; Laws 1941, c. 35, § 1, p. 145; C.S. Supp., 1941, § 20-202; R.S. 1943, § 25-202; Laws 1977, LB 208, § 1; Laws 1995, LB 297, § 1.


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Does Padilla v. Kentucky, 130 S.Ct. 1473 (2010)—holding that defense counsel can render ineffective assistance of counsel for failing to adequately admonish a defendant of the immigration consequences of his guilty plea—apply retroactively to cases already final on appeal?
(Kagan, J.) No. Padilla broke new ground by changing the law in most jurisdictions; thus, it “developed” new law. Under Teague v. Lane, 109 S.Ct. 1060 (1989) a new law does not apply to convictions already final on direct appeal.
(Thomas, J.) Padilla was wrongly decided so a Teague analysis is wholly unnecessary.
(Sotomayor and Ginsburg, J.J.) Yes. Padilla did no more than merely apply the general standard of Strickland v. Washington, 104 S.Ct. 2052 (1984)—governing ineffective assistance of counsel claims—in another situation.
If you are in a county where a lot of Padilla writs have been filed, you know how huge this decision is and how helpful it will be for prosecutors. The victory is even more significant because the decision could have gone the other way. Several appellate courts had already decided against the State on the issue of retroactivity, holding that Padilla was nothing more than another ineffective assistance of counsel case. But after two years, we know Padilla is in fact a watershed holding that has been overturning conviction after conviction. If your defendant was convicted after Padilla, Chaidez will not help you. But in the vast majority of cases, Chaidez is fantastic.
In determining if the alert of a drug-detection dog during a traffic stop provides probable cause to search a vehicle, must the State present exhaustive records—including a log of the dog’s field performance—to establish the dog’s reliability?
(Kagan, J.) No, this approach flouts the accepted test. In making probable cause assessments the court has generally “rejected rigid rules, bright line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.” Instead, “[t]he question—similar to every inquiry into probable cause—is whether all the facts surrounding the dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.” Here, Aldo the dog’s training records were enough to establish him as reliable drug detector.
This decision should be helpful to prosecutors as well. I do not know how often the reliability of drug detection dogs is actually challenged. But this case will make it clear that a showing of reliability need not be a herculean task. Probable cause is a much more attainable standard, and we generally use drug detection dogs to show only probable cause, not proof beyond a reasonable doubt.
Can a person who has left premises subject to a search warrant and is nearly one mile away be arrested under Michigan v. Summers, 101 S.Ct. 2587 (1981)?
(Kennedy, J.) No. Under Summers, an officer’s authority to detain incident to a search is categorical, but the detainee must be in the “immediate vicinity” of the premises. Nearly one mile away is too far. Beyond the immediate vicinity, officer safety, completion of the search, and preventing flight no longer support the arrest.
In an unexpected way, this decision might be helpful to prosecutors in Texas, but only time will tell. In Texas, we have had to deal with Lippert v. State, 664 S.W.2d 712 (Tex. Crim. App. 1984), which applied Michigan v. Summers. It is possible that some of the language from the Supreme Court’s new decision might give us arguments against Lippert in the right case. If you have a case in which officers have detained someone on or near the premises of where a warrant is being executed, read this decision and see if it helps.
Where the State fails to prove an element—one not required for the charged offense—and a trial court enters an acquittal, is retrial barred by the Double Jeopardy Clause?
(Sotomayor, J.) Yes. The result of erroneous evidentiary rulings or erroneous interpretations of governing legal principles may affect the accuracy of an acquittal but they do not alter the essential character of it. These rulings and interpretations, however, should be distinguished from procedural dismissals or mistrials that are unrelated to factual guilt or innocence. Double jeopardy implications attach to the former but not the latter. Even though the trial court was wrong here—based “upon a clear misunderstanding of what facts the State need to prove”—the error affected only the accuracy, not the essential character, of the ruling.
This decision is entirely consistent with holdings from the Court of Criminal Appeals. See State v. Blackshere, 344 S.W.3d 400 (Tex. Crim. App. 2011). If a trial judge issues a directed or instructed verdict, even erroneously or by a mistaken understanding of the law, that is still an acquittal. And the State cannot try the defendant for the same offense. Trial judges, therefore, need to be aware of the extreme power they hold to unnecessarily destroy a prosecution.
May a district judge prohibit the director of a community supervision department from delegating his duties with regard to presentence investigations?
A district judge does not have authority to order the director of a CSCD who does not supervise defendants placed on community supervision to personally conduct a presentence investigation under CCP art. 42.12, §9(a), nor does a judge have authority to order the director to personally appear in court to present the investigation report. A director may delegate report preparation and presentation duties that art. 42.12, §9(a) does not specifically impose on someone else.

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