                                                  In the
                             Missouri Court of Appeals
                                         Western District
 STATE OF MISSOURI,                                     )
                                                        )
                    Appellant,                          )   WD81570
                                                        )
 v.                                                     )   OPINION FILED: March 26, 2019
                                                        )
 CALE D. SEYMOUR,                                       )
                                                        )
                   Respondent.                          )

                Appeal from the Circuit Court of Johnson County, Missouri
                             The Honorable Sue Dodson, Judge

  Before Division One: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
                              and Gary D. Witt, Judge


        The State appeals the trial court's grant of a motion for judgment of acquittal in a

case charging Cale Seymour ("Seymour") with the misdemeanor of failing to insure

workers' compensation liability in violation of section 287.128.7.1 The judgment of

acquittal was entered at the close of the State's evidence, and was based solely on the trial

court's finding that the charged violation was time-barred pursuant to section 287.128.11



        1
         All statutory references are to RSMo 2000, as supplemented through the offending period of August 2011
through October 2013, unless otherwise noted.
because it was filed more than three years after the discovery of Seymour's offense.

Because the charge against Seymour was filed more than three years after the discovery of

his offense, we affirm.

                                 Factual and Procedural Background

        On February 3, 2014, the Missouri Department of Labor and Industrial Relations,

Division of Workers' Compensation, Fraud and Noncompliance Unit (the "Fraud and

Noncompliance Unit") received a referral, and began investigating Cale Seymour

Construction, LLC ("Company") to determine whether it had failed to insure workers'

compensation liability in violation of section 287.128.7.                        The Company was in the

construction business.           By law, it was required to maintain workers' compensation

insurance at any time it had at least one employee.2

        Through database searches conducted on February 3, 2014, a Fraud and

Noncompliance Unit investigator discovered that Seymour was the organizer of the

Company; that the Company was formed on December 30, 2005; that the Company had

workers' compensation insurance nearly continuously from the time it was formed until

August 3, 2011; that the Company did not appear to have workers' compensation insurance

from August 3, 2011 through October 3, 2013; that the Company did have workers'

compensation insurance after October 3, 2013; and that between August 3, 2011 through

October 3, 2013, the Company reported having one or more employees in some quarters,




        2
        Employers required to carry workers' compensation insurance include any person or limited liability
company with one or more employees in the construction industry who "erect[s], demolish[es], alter[s], or repair[s]
improvements." Section 287.030.1(1), (3).

                                                         2
and no employees in other quarters though wage reports stated that wages were paid by the

Company in all quarters.

         The Fraud and Noncompliance Unit investigator did not undertake any other

investigation until mid-May, 2014, when the investigator began attempting to reach

Seymour by telephone. The investigator successfully contacted Seymour on May 19, 2014.

During the recorded telephone call, Seymour admitted that he employed one or more

employees during all quarters between August 3, 2011 and October 3, 2013, and that he

knew the Company did not have workers' compensation insurance as required during that

time frame. In the days that followed the May 19, 2014 telephone call with Seymour, the

investigator unsuccessfully attempted to gather information from Seymour's insurance

agent.

         In mid-June, 2014, the Fraud and Noncompliance Unit prepared a probable cause

statement and referred Seymour's alleged offense to the Attorney General's Office for

prosecution.

         On May 17, 2017, the State charged Seymour with failure to insure workers'

compensation liability in violation of section 287.128.7. At a bench trial on February 27,

2018, the State presented the testimony of the Fraud and Noncompliance Unit investigator.

The investigator described how investigations of this nature are undertaken; the steps taken

during the investigation of Seymour; how his investigation of Seymour modeled the steps

ordinarily taken in investigations of this nature; and the decision to refer the case to the

Attorney General. On cross-examination, the investigator offered no explanation for the

time that elapsed between the February 3, 2014 database searches and the attempts that

                                             3
began in mid-May, 2014 to contact Seymour, and acknowledged that no other steps were

taken to investigate Seymour during the interim three month period.

       At the close of the State's evidence, Seymour moved for a judgment of acquittal

based upon the three-year statute of limitations set forth in section 287.128.11. Seymour

argued that his offense was discovered as of February 3, 2014, and that the filing of charges

more than three years later on May 17, 2017 was time-barred. The State argued that

Seymour's offense was not discovered until May 19, 2014, and that the filing of charges on

May 17, 2017 was not time-barred.

       The trial court granted Seymour's motion for judgment of acquittal, and dismissed

the proceedings. In a written judgment dated February 28, 2018 ("Judgment"), the trial

court found:

       [A]fter considering the credibility of the testimony and evidence presented,
       [the Court] finds the discovery date of [Seymour's] alleged criminal conduct
       was February 3, 2014, that more than three (3) years elapsed before the filing
       of the State of Missouri's initial information and that in accordance with
       Section 287.128.11, this proceeding is now time barred.

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
       [Seymour's] Motion for Judgment of Acquittal at the Close of the State of
       Missouri's Case is hereby granted. This proceeding is dismissed [] as having
       not been timely brought within the applicable limitation.

The State filed this timely appeal.

                                  Appellate Jurisdiction

       Before addressing the merits, we must determine whether we have jurisdiction to

consider this appeal. State v. Lilly, 410 S.W.3d 699, 701 (Mo. App. W.D. 2013). That is

because "'[t]he right to appeal is purely statutory and, where a statute does not give a right


                                              4
to appeal, no right exists.'" Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011)

(quoting State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 859 (Mo. banc 2008)). If

we "'lack[] jurisdiction to entertain an appeal, the appeal must be dismissed.'" Lilly, 410

S.W.3d at 701 (quoting Walker v. Brownel, 375 S.W.3d 259, 261 (Mo. App. E.D. 2012)).

         Rule 30.01(a)3 provides that "after the rendition of final judgment in a criminal case,

every party shall be entitled to an appeal permitted by law." (Emphasis added.) The State's

right of appeal is purely statutory, and is controlled by section 547.200. State v. Connell,

326 S.W.3d 865, 866-67 (Mo. App. W.D. 2010) ("[W]here a statute does not give [the

State] a right to appeal, no right exists."). Relevant to this case, section 547.200.2 provides

in pertinent part that:

         The state, in any criminal prosecution, shall be allowed an appeal in . . . all
         [] criminal cases except in those cases where the possible outcome of such
         an appeal would result in double jeopardy for the defendant.

(Emphasis added.) If appeal of the Judgment would result in double jeopardy for Seymour,

the State has no right of appeal, requiring dismissal of this appeal.

         The State argues that its appeal of the Judgment will not result in double jeopardy

for Seymour as he was acquitted on a basis not related to factual guilt or innocence. We

agree.

         For purposes of the Double Jeopardy Clause:4

         [A] defendant who has been released by a court for reasons required by the
         Constitution or laws, but which are unrelated to factual guilt or innocence,
         has not been determined to be innocent in any sense of that word, absolute
         or otherwise. In other circumstances, [courts] ha[ve] had no difficulty in
         3
        All rule references are to Missouri Court Rules, Volume I—State, 2018 unless otherwise indicated.
         4
        Both the United States Constitution and the Missouri Constitution provide individuals with protection
from double jeopardy. U.S. Const. amend. V; Mo. Const. art. I, section 19.

                                                        5
         distinguishing between those rulings which relate to "the ultimate question
         of guilt or innocence" and those which serve other purposes.

United States v. Scott, 437 U.S. 82, 98 n. 11 (1978) (internal citations omitted). Rulings

that "serve other purposes" include "procedural dismissals" such as "'a legal judgment that

a defendant, although criminally culpable, may not be punished.'" Evans v. Michigan, 568

U.S. 313, 319 (2013) (quoting Scott, 437 U.S. at 98). "[A] defendant is acquitted [on the

ultimate question of guilt or innocence] only when 'the ruling of the judge, whatever its

label, actually represents a resolution [in the defendant's favor], correct or not, of some or

all of the factual elements of the offense charged.'" Scott, 437 U.S. at 97 (quoting United

States v. Martin Linen, 430 U.S. 564, 571 (1977)). The statute of limitations is "not an

element of the crime charged." State v. Coor, 740 S.W.2d 350, 356 (Mo. App. S.D. 1987)

(holding that State's appeal of dismissal of charges based on the statute of limitations would

not result in double jeopardy even though court heard evidence to decide the issue).

         Here, though the trial court heard all of the State's evidence bearing on the issue of

Seymour's guilt or innocence before considering and ruling on Seymour's motion for

judgment of acquittal based on the statute of limitations,5 the trial court did not determine

the question of Seymour's guilt or innocence when it granted the motion for judgment of

acquittal. Instead, the trial court released Seymour for a procedural reason required by law

that was unrelated to Seymour's guilt or innocence. Midtrial dismissal of a case on the


          5
            The State's Brief suggests that Seymour did not raise the issue of the statute of limitations until the close of
the State's evidence. Seymour's Brief argues that he electronically filed a motion addressing the statute of
limitations immediately before trial. Regardless, it is plain from the trial transcript that the trial court did not address
the statute of limitations defense until that topic was raised by Seymour at the close of the State's evidence. For
reasons we explain, infra, the timing of Seymour's filing of a motion raising the statute of limitations defense is
irrelevant, as no one contests that the issue was raised before disposition of the case.

                                                             6
basis of the statute of limitations is no less a dismissal unrelated to guilt or innocence than

if the defense is raised and ruled pretrial. See Scott, 437 U.S. at 99 (holding that where a

defendant prevails on a midtrial motion to dismiss on grounds unrelated to guilt or

innocence, it is not improper to terminate the proceedings on those grounds, and "a

defendant [who] prevails on such a motion [] [takes] the risk that an appellate court will

reverse the trial court" requiring a new trial). This is consistent with the fact that the statute

of limitations is an affirmative defense that can be permissibly "raised . . . before a final

disposition of the case." Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012); see also,

State v. Cotton, 295 S.W.3d 487, 490 (Mo. App. E.D. 2009) (holding the affirmative

defense of the statute of limitations must be raised in a criminal case "'before final

disposition of the case whether by conviction or plea, or it is waived'") (quoting Longhibler

v. State, 832 S.W.2d 908, 910 (Mo. banc 1992)).

       We conclude that the State's appeal of the Judgment is statutorily authorized by

section 547.200.2 as the outcome of this appeal will not result in double jeopardy for

Seymour. Accordingly, we have jurisdiction to consider the State's appeal.

                                            Analysis

       The State's sole point on appeal asserts that the trial court erred in granting

Seymour's motion for judgment of acquittal on the basis of the statute of limitations

because its prosecution of Seymour for violation of section 287.128.7 was not time-barred

by section 287.128.11. Specifically, the State argues that the charge against Seymour was

filed within three years of discovery of Seymour's offense. "The determination of whether



                                                7
or not a statute of limitations applies is a question of law and is reviewed de novo." State

v. McMillian, 524 S.W.3d 51, 53 (Mo. App. W.D. 2016).

       Section 287.128.7 provides that an employer "who knowingly fails to insure his

liability" pursuant to the Workers' Compensation Law is guilty of a class A misdemeanor.

Section 287.128.11 sets forth the statute of limitations applicable to violations of section

287.128.7, and provides:

       Any prosecution for [] violation of [section 287.128.7] [] shall be
       commenced within three years after discovery of the offense by an aggrieved
       party or by a person who has a legal duty to represent an aggrieved party and
       who is not party to the offense.

(Emphasis added.)

       The Fraud and Noncompliance Unit is the State's investigative unit, and is

"responsible for investigating incidences of fraud and failure[s] to comply" with section

287.128.   Section 287.128.10; see also section 287.128.8 (requiring the Fraud and

Noncompliance Unit to investigate complaints submitted by "[a]ny person"). As the State's

statutorily authorized investigative unit, the Fraud and Noncompliance Unit is "a person

who has a legal duty to represent an aggrieved party." State v. Frese, 487 S.W.3d 71, 75-

76 (Mo. App. W.D. 2016). Thus, the statute of limitations for prosecuting Seymour's

alleged violation of section 287.128.7 began to run pursuant to section 287.128.11 "after

discovery of [Seymour's] offense" by the Fraud and Noncompliance Unit.

       The phrase "discovery of the offense" is not defined by section 287.128. The

meaning of the phrase "discovery of the offense" was discussed, however, in Frese. 487

S.W.3d at 76-78. Frese concluded that because the Fraud and Noncompliance Unit is the


                                             8
State's statutorily authorized investigative unit with authority to refer an investigated file

to the Attorney General for possible prosecution, "the phrase 'discovery of the offense by

a person who has a legal duty to represent an aggrieved party' contemplates . . . the

discovery of a referable offense by the State's investigative agent." Id. at 76 (emphasis

added). See also, id. at 77 (holding that when the Fraud and Noncompliance Unit

"discovered all the facts necessary to refer the offense to the Attorney General for

prosecution," the statute of limitations accrual period was triggered). Frese applied that

definition to conclude that "discovery of the offense" was not delayed, as the State had

argued, to the point when a matter is actually referred to the Attorney General, but instead

occurs when the facts "necessary" to refer the offense have been discovered by the Fraud

and Noncompliance Unit. Id. at 75, 77.

         Here, we must decide when, during an investigation, the Fraud and Noncompliance

Unit has discovered the facts necessary to refer an offense so as to trigger section

287.128.11's accrual period. That question was not at issue in Frese.6

         Seymour argues that the Fraud and Noncompliance Unit discovered his alleged

offense on February 3, 2014, because as of that date, the investigator had discovered

enough facts to refer his offense to the Attorney General, and learned nothing more during

the balance of the investigation not already known or suspected. The State argues that the

Fraud and Noncompliance Unit discovered Seymour's offense on May 19, 2014, because


          6
            Frese had no reason to address when the Fraud and Noncompliance Unit should be deemed to have
discovered facts "necessary" to refer a matter during an investigation. Frese found only that as between actual
referral of a matter to the Attorney General, and the last reported step in the Fraud and Noncompliance Unit's
investigation (which happened to be a phone call to the employer), discovery of the offense occurred at the end of
the investigation. 487 S.W.3d at 75-77.

                                                         9
on that date, Seymour confirmed that he had least one employee and no workers'

compensation insurance at all times between August 3, 2011 and October 3, 2013. Because

section 287.128.7 requires a "knowing"7 failure to insure workers' compensation liability,

the State argues that Seymour's admissions were facts necessary to discover a referable

offense.

         Both parties' arguments presume that the definition of "discovery of the offense"

announced in Frese contemplates the subjective, hindsight dissection of an investigation

to pinpoint the precise moment when facts sufficient to refer a matter were first discovered.

Frese cannot be fairly read in this manner. Frese explained that "'[t]he primary rule of

statutory interpretation is to effectuate legislative intent through reference to the plain and

ordinary meaning of the statutory language.'" 487 S.W.3d at 75 (quoting State v. Graham,

204 S.W.3d 655, 656 (Mo. banc 2006)). "'[I]n ascertaining legislative intent . . . the entire

act must be construed together and all provisions must be harmonized.'" Id. (quoting

Eminence R-1 Sch. Dist. v. Hodge, 635 S.W.2d 10, 13 (Mo. 1982)). Thus, the definition

of "discovery of the offense" announced in Frese must be construed and applied in a

manner that can be harmonized with the other provisions in Chapter 287.

         Section 287.128.10 establishes the Fraud and Noncompliance Unit and renders it

"responsible for investigating incidences of fraud and failure to comply with the provisions

of [Chapter 287]." Section 287.128.8 provides that the Fraud and Noncompliance Unit



         7
           Section 562.016.3 provides that "[a] person 'acts knowingly', or with knowledge: (1) With respect to his or
her conduct or to attendant circumstances when he or she is aware of the nature of his or her conduct or that those
circumstances exist; or (2) With respect to a result of his or her conduct when he or she is aware that his or her conduct
is practically certain to cause that result."

                                                           10
"shall investigate all complaints and present any finding of fraud or noncompliance to

the director, who may refer the file to the attorney general." These provisions require the

Fraud and Noncompliance Unit to conduct an investigation, but leave the scope and extent

of the investigation to the Unit's discretion. And these provisions contemplate that at the

conclusion of the Fraud and Noncompliance Unit's investigation, a determination will be

made as to whether there is a finding of fraud or noncompliance that could be presented to

the Attorney General.

       It would be inconsistent with the intent of these provisions to require a subjective,

hindsight analysis of a Fraud and Noncompliance Unit investigation to determine the

precise moment when sufficient facts were first discovered to permit referral to the

Attorney General, or when (as is argued here), an investigation stopped yielding

information not already known or suspected by the investigator. Construing Frese's

definition of "discovery of the offense" in the subjective, hindsight manner argued by the

parties would encourage incomplete investigations, and the premature referral of matters

for prosecution, based solely on an investigator's concern that a tribunal might later

conclude that the investigator learned enough to permit referral of an offense midway

through an otherwise objectively reasonable investigation. In other words, a subjective,

hindsight critique of an investigation would usurp the Fraud and Noncompliance Unit's

statutory authority and directive to conduct an investigation sufficient to permit it to

conclude whether there is a finding of fraud or noncompliance that should be referred to

the Attorney General.



                                            11
       Instead, to be harmonized with sections 287.128.8 and .10, the definition of

"discovery of the offense" set forth in Frese necessarily refers to the entirety of an

objectively reasonable investigation conducted by the Fraud and Noncompliance Unit. So

long as the Fraud and Noncompliance Unit has engaged in an investigation that is

objectively reasonable in scope and time frame, then we are bound to conclude that it is

engaging in the investigation it is required to undertake by law. And so long as an

investigation is objectively reasonable, it cannot be said that the Fraud and Noncompliance

Unit has discovered all the facts necessary for it to determine whether there is a finding of

fraud or noncompliance that may be referred to the Attorney General for prosecution.

       "The interpretation of a statute is a pure question of law, and [] we give the trial

court's interpretation no deference." State v. Rodgers, 396 S.W.3d 398, 400 (Mo. App.

W.D. 2013). Here, the trial court found that the Fraud and Noncompliance Unit discovered

Seymour's offense as of February 3, 2014. We do not know, however, whether the trial

court did so based on the erroneous belief that the definition of "discovery of the offense"

announced in Frese requires a subjective, hindsight analysis of when the Fraud and

Noncompliance Unit first discovered facts that could have permitted a referral to the

Attorney General. Regardless, we are "primarily concerned with the correctness of the trial

court's result, not the route taken by the trial court to reach that result." Blue Ridge Bank

and Trust Co. v. Trosen, 309 S.W.3d 812, 815 (Mo. App. W.D. 2010) (quotation omitted).

"[T]he judgment will be affirmed if cognizable under any theory, regardless of whether the

reasons advanced by the trial court are wrong or not sufficient." Id. (quotation omitted).



                                             12
       Here, the Fraud and Noncompliance Unit's statutory investigation continued after

the February 3, 2014 database searches to include telephone contact with Seymour on

May 19, 2014, and to include efforts to contact Seymour's insurance agent in the days

following the telephone call with Seymour. There is no evidence to suggest, and Seymour

does not contend, that the investigative steps taken after February 3, 2014 were not

objectively reasonable. However, there was a period of over three months between the

investigator's database searches on February 3, 2014, and the investigator's first attempt to

contact Seymour in mid-May, 2014 when nothing whatsoever was done to further

investigate Seymour. The investigator offered no explanation for this delay. The trial court

could have concluded that even though the investigative efforts undertaken by the Fraud

and Noncompliance Unit were objectively reasonable in scope, the time taken to complete

the investigation was not objectively reasonable. As a result, the trial court could have

concluded that the Fraud and Noncompliance Unit's objectively reasonable investigation

ended after the February 3, 2014 data bank searches, and that as a result, the accrual period

set forth in section 287.128.11 was triggered on that date.

       A similar conclusion was reached under analogous circumstances in State v. Young,

440 N.E.2d 1379 (Oh. Ct. App. 1981). There, the court held that "discovery of the offense"

of knowingly making a false statement in connection with securing state benefits occurred

at the "absolute latest within a reasonable period" after the State's administrative agency

began an investigation. Id. at 1381. The court applied an objective standard to assess the

scope and time frame of an investigation to determine when the agency should be deemed

to have discovered an offense. Id. The court noted that particularly with respect to the

                                             13
time taken to conduct an investigation, the use of an objective standard prevents

investigators from "procrastinat[ing] with impunity when they ha[ve] in their possession

information or material which indicate[s]" an offense may have been committed. Id. The

court found that a five month investigation that began with a database search was not

objectively reasonable, and that charges later filed as a result of the investigation were

time-barred. Id.

       We therefore conclude that the trial court did not err in granting Seymour's motion

for judgment of acquittal based on the statute of limitations in section 287.128.11.

Although the scope of the Fraud and Noncompliance Unit's investigation was objectively

reasonable in so far as the steps taken to investigate Seymour, the time taken to complete

the investigation was not objectively reasonable given a delay of over three months when

no investigative efforts were being pursued, despite a strong indication after the database

searches on February 3, 2014 that a referable offense may have occurred. The Fraud and

Noncompliance Unit's objectively reasonable investigation therefore ended on February 3,

2014. Since Seymour was charged with violating section 287.128.7 on May 17, 2017,

prosecution of the charge was time-barred by section 287.128.11.

       Point denied.

                                       Conclusion

       The trial court's Judgment is affirmed.



                                          __________________________________
                                          Cynthia L. Martin, Judge


                                            14
All concur




             15
