STATE OF MISSOURI,
)
)
Respondent,
)
)
vs.
)
No. WD78588
)
DUSTIN L. GIBSON
)
)
Appellant.
)
__________________________________________________________________
APPEAL TO THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSOURI
FIFTEENTH JUDICIAL CIRCUIT, DIVISION
THE HONORABLE DENNIS A. ROLF, JUDGE
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
Casey A. Taylor, MOBar #63283
Attorney for Appellant
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, Missouri 65203
Telephone (573) 777-9977
FAX (573) 777-9974
casey.taylor@mspd.mo.gov
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
IN THE
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
__________________________________________________________________
Page
TABLE OF AUTHORITIES .................................................................................. 2
JURISDICTIONAL STATEMENT ....................................................................... 4
STATEMENT OF FACTS ..................................................................................... 5
POINTS RELIED ON ............................................................................................ 9
ARGUMENT ........................................................................................................ 11
CONCLUSION .................................................................................................... 28
APPENDIX
1
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
INDEX
Page
CASES:
In re Winship, 397 U.S. 358 (1970) ..................................................................... 12
In the Interest of V.L.P., 947 S.W.2d 546 (Mo. App. W.D. 1997) ............ 15, 16
State v. Bateman, 318 S.W.3d 681 (Mo. banc 2010) ........................................ 12
State v. Cowan, 247 S.W.3d 617 (Mo. App. W.D. 2008) ................................ 22
State v. Hawthorne, 74 S.W.3d 826 (Mo. App. W.D. 2002) ........................... 12
State v. Lang, 515 S.W.2d 507 (Mo. banc 1974) ............................................... 21
State v. Lindsey, 996 S.W.2d 577 (Mo. App. W.D. 1999) ............................... 20
State v. McIntyre, 735 S.W.2d 111 (Mo. App. E.D. 1987) .............................. 13
State v. Moreland, 459 S.W.3d 484 (Mo. App. W.D. 2015) ............................ 22
State v. Poole, 216 S.W.3d 271 (Mo. App. S.D. 2007) ..................................... 11
State v. Presberry, 128 S.W.3d 80 (Mo. App. E.D. 2004) .......................... 14, 16
State v. Sonnier, 422 S.W.3d 521 (Mo. App. E.D. 2014) ................................. 12
State v. Vaughn, 940 S.W.2d 26 (Mo. App. S.D. 1997) ................................... 23
State v. Whalen, 49 S.W.3d 181 (Mo. banc 2001) ............................................ 12
State v. Wright, 998 S.W.2d 78 (Mo. App. W.D. 1999) ............................. 25-27
State v. Wolf, 326 S.W.3d 905 (Mo. App. S.D. 2010) ...................................... 21
Thurston v. State, 791 S.W.2d 893 (Mo. App. E.D. 1990) .............................. 23
2
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
TABLE OF AUTHORITIES
U.S. v. Sales, 725 F.2d 458 (8th Cir. 1984) .......................................................... 23
CONSTITUTIONAL PROVISIONS:
U.S. Const., Amend. VI ................................................................................. 10, 19
U.S. Const., Amend. XIV .................................................................... 9, 10, 11, 19
Mo. Const., Art. I, §10 ..................................................................................... 9, 11
Mo. Const., Art. I, §18(a) ............................................................................... 10, 19
Mo. Const., Art. V, §3 ............................................................................................ 4
STATUTES:
Section 477.070 ....................................................................................................... 4
Section 557.036 ............................................................................................... 23, 27
Section 565.082 ....................................................................................................... 4
Section 565.083 ....................................................................................................... 4
Section 569.080 ................................................................................................. 4, 12
Section 575.150 ....................................................................................................... 4
RULES:
Rule 30.20 .............................................................................................................. 22
3
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
U.S. v. Medina-Cervantes, 690 F.2d 715 (9th Cir. 1982) .................................. 24
Appellant, Dustin Gibson, was convicted following a jury trial of
assault on a law enforcement officer in the third degree,1 §565.083,
tampering in the first degree, §569.080.1(2), and resisting a lawful stop,
§575.150.2 As a result, he was sentenced to imprisonment for terms of one
year on the assault charge, twelve years on the tampering charge, and
seven years on the resisting charge, with the seven and twelve year
sentence to run consecutively to one another for a total of 19 years.
Because this appeal involves none of the issues reserved for the
exclusive appellate jurisdiction of the Missouri Supreme Court, jurisdiction
lies in the Missouri Court of Appeals, Western District. Article V, §3, Mo.
Const. (as amended 1982); §477.070.
1
Appellant was charged with assault of a law enforcement officer in the
second degree, §565.082, but the jury found him not guilty of that charge
and instead guilty of the lesser charge of assault of a law enforcement
officer in the third degree.
2
Statutory citations are to RSMo 2000.
4
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
JURISDICTIONAL STATEMENT
On July 24, 2014, Lance Rivas was doing yard work for his boss. (Tr.
191).3 After running an errand for his boss’s wife, he went inside the
house. (Tr. 192-193). While he was inside the house he heard his truck,
which he had purchased less than two weeks prior, being started. (Tr. 194,
201). In response, he rushed outside to see someone who he had never
before seen backing the truck out of the driveway. (Tr. 195-196). Rivas got
a good look at the stranger who was operating his truck for approximately
thirty seconds. (Tr. 196-197). At trial, with Appellant present in the
courtroom, Rivas testified that the person he saw driving his truck was not
in the room. (Tr. 196).
That evening, Deputy Dean Koch, of the Lafayette County Police
Department, got a call regarding the truck that was stolen from Rivas
being located at a trailer park. (Tr. 215-216). As Koch approached the
truck, the driver, who Koch identified as Appellant, told him that the car
he was looking for was the gold car in front of him. (Tr. 217, 218).
Appellant then began to drive away. (Tr. 217-218). A chase ensued, in
3
Citations to the transcript of Appellant’s jury trial conducted on March 4,
2015, will be designated as “TR.” Citations to the transcript of Appellant’s
sentencing hearing held on April 20, 2015, will be designated at “Sent. TR.”
5
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
STATEMENT OF FACTS
ninety miles per hour. (Tr. 223).
At times during the chase, Appellant would suddenly apply his
brakes while Koch was pursuing him. (Tr. 223, 226). Koch testified that
applying the brakes during a vehicle pursuit is a tactic people attempting
to get away from law enforcement will use to force the officer to ram into
the back of their vehicle, making the police car inoperable. (Tr. 224-225).
Appellant also would swerve into the opposite lane of traffic when another
vehicle was approaching in an effort to cause a wreck. (Tr. 231). Koch
testified that if a wreck had occurred he would have had to end the
pursuit. (Tr. 233).
Koch eventually was instructed to end the pursuit, but continued
driving at a normal speed, never losing sight of Appellant. (Tr. 234-235).
At that point, officers from a neighboring county continued the pursuit of
Appellant. (Tr. 235). The chase finally ended when Appellant got the
truck stuck in the mud. (Tr. 237-238). He was then arrested and the truck
was towed back to Lafayette County. (Tr. 240).
6
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
which Appellant and Koch were at times driving at speeds as high as
guilty of assault on a law enforcement officer in the third degree,4
tampering with a motor vehicle in the first degree and resisting a lawful
stop. (L.F. 303-305; Tr. 303-304). Sentencing was set for a later date. (Tr.
307).
At that sentencing hearing, defense counsel argued that due to
Appellant’s issues with abusing drugs, the court should consider
sentencing him to institutional treatment pursuant to either Section 559.115
or to long term treatment pursuant to Section 217.362. (Sent. Tr. 10). The
court interrupted defense counsel and the following exchange occurred:
THE COURT: Why would I show – why would I want to give
somebody treatment that has never once in this case come in
and accepted responsibility and shown any remorse
whatsoever?”
[DEFENSE COUNSEL]: He exercised his right to have a trial.
4
The jury found Appellant not guilty of assault on a law enforcement
officer in the second degree as had been charged in the information, but
guilty of the lesser included offense of assault of a law enforcement officer
in the third degree. (L.F. 30; Tr. 303).
7
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
After hearing evidence and argument, the jury found Appellant
him for his right to a trial. But you are asking for some
consideration and leniency that is normally given to people
that come in and say, Judge, I’ve got a problem, I’m sorry, I
did what I did, I shouldn’t have done it, I was wrong. And he
has [not]5 done that. (Sent. Tr. 10-11).
The court then sentenced Appellant to imprisonment terms of one
year for the assault charge, twelve years on the tampering charge and
seven years on the resisting arrest charge. (Sent. Tr. 17). The court further
ordered that the twelve and seven year sentence run consecutively to one
another. (Sent. Tr. 17). This appeal follows.
5
The transcript reflects that the court ended this comment with the
sentence “And he has done that.” Clearly, given the context of what the
court was saying at the time, either what was actually said was “And he
has not done that” and there was an error in transcribing, or the court
misspoke.
8
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
THE COURT: I understand that and I’m not going to penalize
I.
The trial court erred in not granting Appellant’s motions for
judgment of acquittal and in imposing sentence and judgment against
him on the charge of tampering, because these actions were in violation
of Appellant’s right to due process of law as guaranteed by the
Fourteenth Amendment of the United States Constitution as well as
Article I, Section 10 of the Missouri Constitution, in that sufficient
evidence was not presented from which a reasonable juror could have
found beyond a reasonable doubt that Appellant knowingly operated
the truck without the owner’s consent, due to the fact that the evidence
showed that Appellant was not the individual who actually stole the
truck and no evidence was presented by the state to show that Appellant
even knew who the true owner of the truck was, much less that he knew
he did not have the owner’s consent to operate the vehicle.
State v. Presberry, 128 S.W.3d 80 (Mo. App. E.D. 2004);
In the Interest of V.L.P., 947 S.W.2d 546 (Mo. App. W.D. 1997);
State v. McIntyre, 735 S.W.2d 111 (Mo. App. E.D. 1987);
In re Winship, 397 U.S. 358 (1970);
U.S. Const., Amend. XIV;
Mo. Const., Art. I, §10.
9
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
POINTS RELIED ON
The trial court erred and abused its discretion in taking into
account the fact that Appellant exercised his right to have a jury trial in
deciding his sentence, because basing Appellant’s sentence on the fact
that he chose to go to trial rather than plead guilty was in violation of his
right to have his case tried to a jury as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution as well as
Article I, Section 18(a) of the Missouri Constitution, in that the only
factors that are proper for the court to consider at a sentencing hearing
are the nature of the crime itself and the accused’s criminal history; it is
improper for a sentencing court to use the sentencing process to punish a
defendant for exercising his right to proceed to trial.
State v. Wright, 998 S.W.2d 78 (Mo. App. W.D. 1999);
U.S. v. Sales, 725 F.2d 458 (8th Cir. 1984);
State v. Vaughn, 940 S.W.2d 26 (Mo. App. S.D. 1997);
U.S. v. Medina-Cervantes, 690 F.2d 715 (9th Cir. 1982);
U.S. Const., Amends. VI and XIV;
Mo. Const., Art. I, §18(a);
Section 557.036.1.
10
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
II.
I.
The trial court erred in not granting Appellant’s motions for
judgment of acquittal and in imposing sentence and judgment against
him on the charge of tampering, because these actions were in violation
of Appellant’s right to due process of law as guaranteed by the
Fourteenth Amendment of the United States Constitution as well as
Article I, Section 10 of the Missouri Constitution, in that sufficient
evidence was not presented from which a reasonable juror could have
found beyond a reasonable doubt that Appellant knowingly operated
the truck without the owner’s consent, due to the fact that the evidence
showed that Appellant was not the individual who actually stole the
truck and no evidence was presented by the state to show that Appellant
even knew who the true owner of the truck was, much less that he knew
he did not have the owner’s consent to operate the vehicle.
Standard of Review
The Due Process Clause contained in the Fourteenth Amendment of
the United States Constitution as well as Article I, Section 10 of the
Missouri Constitution protects the accused in a criminal case against
conviction “except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” State v.
11
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
ARGUMENT
397 U.S. 358 (1970). Furthermore, “the state has the burden and must
prove each and every element of a criminal case, and if the state fails to
produce sufficient evidence to sustain the convictions, the judgment of the
trial court is reversed.” State v. Sonnier, 422 S.W.3d 521, 523 (Mo. App.
E.D. 2014) (internal citations omitted).
In reviewing a claim of insufficient evidence, an appellate court’s
“review is limited to whether the State has introduced sufficient evidence
for any reasonable juror to have been convinced of guilt beyond a
reasonable doubt.” State v. Bateman, 318 S.W.3d 681, 686-687 (Mo. banc
2010). Further, “the reviewing court will not weigh the evidence, but
accepts as true all facts and inferences favorable to the verdict and
disregards evidence and inferences to the contrary.” State v. Hawthorne,
74 S.W.3d 826, 828 (Mo. App. W.D. 2002). However, the reviewing court
may “not supply missing evidence, or give the State the benefit of
unreasonable, speculative or forced inferences.” State v. Whalen, 49
S.W.3d 181, 184 (Mo. banc 2001).
Analysis
Section 569.080.1(2) mandates that in order for an individual to be
guilty of tampering in the first degree, that person must “knowingly…
12
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
Poole, 216 S.W.3d 271, 277 (Mo. App. S.D. 2007), quoting In re Winship,
added for emphasis). In the present case, the jury was instructed to find
Appellant guilty of tampering if they believed beyond a reasonable doubt
that:
[Appellant] knowingly operated a [truck] owned by…Lance
Rivas, and
Second that he operated the automobile without the consent
of the owner, and
Third that he operated it, knowing that he did so without the
consent of the owner. (Italics added for emphasis).
(L.F. 25). In other words, in a prosecution for tampering, the state is
required to prove that the accused “knew he was operating the car without
the consent of the owner.” State v. McIntyre, 735 S.W.2d 111, 112 (Mo.
App. E.D. 1987). Because the state failed to present sufficient evidence that
Appellant actually knew that he did not have the owner’s consent to
operate the vehicle, his conviction for tampering in the first degree cannot
stand.
13
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
operate an automobile…without the consent of the owner thereof.” (Italics
was not the person whom he saw steal his truck.6 (Tr. 196). Lance also
testified that he got a good look at the person who stole his truck for
approximately thirty seconds. (Tr. 196-197). Absolutely no evidence was
presented by the state to suggest that Appellant was the person who
actually stole the truck. Therefore, the only possibly conclusion that could
be reached is that someone other than Appellant was the person who took
the truck.
Nonetheless, when Deputy Koch spotted the truck several hours
later, Appellant was driving it. (Tr. 217, 218). There was no evidence
regarding how the truck went from being operated from the unidentified
individual who stole it from Lance Rivas to being operated by Appellant.
Appellant’s case is similar to the Eastern District of this Court’s
decision in State v. Presberry, 128 S.W.3d 80 (Mo. App. E.D. 2004). The
accused in that case, like Appellant, was charged with first degree
tampering based on the allegation that he operated an automobile without
the consent of the owner. Id. at 96. In Presberry, the accused was found
6
Specifically, he testified that the person who stole his truck was not in the
courtroom during his testimony. (Tr. 196). Appellant was present in the
courtroom throughout the trial.
14
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
The owner of the truck, Lance Rivas, testified at trial that Appellant
earlier. Id. at 97. As in the present case, there was no evidence connecting
the accused to the taking of the vehicle from the dealership. Id. Also, as in
the present case, “there was no evidence of physical damage to the vehicle
indicating it may have been broken into or forcefully removed from a prior
location…[and]no evidence that anything other than the [stolen vehicle’s]
keys [were] used to operate its ignition.” Id.
The Eastern District found this evidence insufficient to sustain a
conviction for tampering and reversed the accused’s conviction. Id. In so
reversing, the Court noted that “merely driving a stolen vehicle, without
more, does not establish a sufficient factual basis to allow an inference of
guilt to convict a defendant of first degree tampering.” Id. at 96.
Appellant’s case is also similar to this Court’s decision in In the
Interest of V.L.P. 947 S.W.2d 546 (Mo. App. W.D. 1997). In that case a
rental car was stolen with no evidence presented regarding who actually
stole it. Id. at 546-547. The accused was later seen driving the car and
arrested. Id at 547. The arresting officer noted that, as in the present case,
“the steering column was not broken, the windows were not broken, and
that the keys were in the ignition.” Id. This Court reversed the accused’s
conviction, finding that the evidence was “not sufficient to prove that the
15
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
driving a vehicle which had been stolen from a car dealership several days
Court noted that “[s]imply driving a stolen automobile, without more,
does not establish a sufficient factual basis to allow an inference of guilt to
convict.” Id. at 547-548.
Just like the accused in in both Presberry and In the Interest of
V.L.P., in the present case the only thing connecting Appellant to the stolen
truck was the fact that he was found driving it sometime after it was
stolen. As in Presberry and In the Interest of V.L.P., there was no evidence
presented of damage to the car, such as a broken steering column, an
ignition that had been tampered with or broken windows, that would lead
one to believe that the car was stolen. As a result, this Court should follow
the lead of those two cases and similarly reverse Appellant’s conviction for
tampering.
In attempting to distinguish the present case from Presberry and In
the Interest of V.L.P., Respondent may point to the fact that, unlike in the
present case, in those two cases there was no evidence that the vehicles
had only recently been stolen when the accused was found driving them. 7
7
In In the Interest of V.L.P. there was no evidence presented regarding
when the vehicle had been stolen (947 S.W.2d at 548), and in Presberry the
16
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
[accused] had the requisite criminal intent.” Id. at 548. In so holding, this
Court in those two cases relied on in reversing the convictions.
Respondent would further be accurate in pointing to the fact that in the
present case Appellant was seen driving the truck approximately eight
hours after the truck was stolen. (Tr. 194, 214). Nonetheless, to argue that
Appellant’s driving of the truck only eight hours after it was stolen is
evidence of his knowledge that he did not have the owner’s permission to
operate the truck would be without merit.
That argument lacks merit due to the logic behind the proposition
that possession of a recently stolen vehicle is evidence of knowledge. The
logic for that proposition is that insufficient time would have passed for
the true thief to transfer the vehicle to the driver in a manner which would
not make it obvious that the vehicle was stolen, so therefore the person
seen driving the vehicle is likely the same person who actually stole it. In
the present case, however, that concern does not exist due to the fact that
Appellant clearly was not the individual who Lance Rivas saw steal his
vehicle. (Tr. 196-197). Given this circumstance, the fact that only eight
evidence showed that the vehicle had been stolen “several days” before
the accused was seen driving it. 128 S.W.3d at 97.
17
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
Respondent would indeed be correct that the timing was a factor that the
Appellant was found driving it does nothing to strengthen the state’s case.
Conclusion
That the accused in a tampering case has knowledge that he is
operating a vehicle without the owner’s consent is an element that the state
is required to prove to sustain a conviction. In the present case, the
evidence showed that Appellant was not the individual who actually stole
the truck, and no evidence was presented by the state to show that
Appellant even knew who the true owner of truck was, much less that he
knew he didn’t have the owner’s consent to operate the vehicle. As a
result, this Court should reverse Appellant’s conviction for tampering and
discharge him for that offense.
18
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
hours passed between the time the truck was stolen and the time
The trial court erred and abused its discretion in taking into
account the fact that Appellant exercised his right to have a jury trial in
deciding his sentence, because basing Appellant’s sentence on the fact
that he chose to go to trial rather than plead guilty was in violation of his
right to have his case tried to a jury as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution as well as
Article I, Section 18(a) of the Missouri Constitution, in that the only
factors that are proper for the court to consider at a sentencing hearing
are the nature of the crime itself and the accused’s criminal history; it is
improper for a sentencing court to use the sentencing process to punish a
defendant for exercising his right to proceed to trial.
Relevant Facts
At Appellant’s sentencing hearing, defense counsel urged the court
to sentence Appellant to an institutional treatment program8 so that he
could get some help dealing with his substance abuse issues. (Sent. Tr. 10).
The court interrupted defense counsel and the following exchange
occurred:
8
Specifically, defense counsel urged the court to sentence Appellant
pursuant to Section 559.115 or 217.362. (Sent. Tr. 10).
19
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
II.
somebody treatment that has never once in this case come in
and accepted responsibility and shown any remorse
whatsoever?”
[DEFENSE COUNSEL]: He exercised his right to have a trial.
THE COURT: I understand that and I’m not going to penalize
him for his right to a trial. But you are asking for some
consideration and leniency that is normally given to people
that come in and say, Judge, I’ve got a problem, I’m sorry, I
did what I did, I shouldn’t have done it, I was wrong. And he
has [not] done that. (Sent. Tr. 10-11).
The court then sentenced Appellant to imprisonment terms of one
year for the assault charge, twelve years on the tampering charge and
seven years on the resisting arrest charge. (Sent. Tr. 17). The court further
ordered that the twelve and seven year sentence run consecutively to one
another. (Sent. Tr. 17).
Standard of Review and Preservation of the Issue
An appellate court “presumes[s] that the trial court's experience and
expertise enable the judge to consider appropriate sentencing factors and
to disregard improper matters.” State v. Lindsey, 996 S.W.2d 577, 579
20
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
THE COURT: Why would I show – why would I want to give
sentencing function.” Id at 580. “Review is for abuse of discretion.” Id.
This issue has been properly preserved for appellate review. While
it is true that defense counsel did not actually say the word “objection” in
objecting to the court’s taking into consideration the fact that Appellant
chose to go to trial in deciding his sentence, defense counsel did state “he
exercised his right to have a trial.” (Sent. Tr. 10). It is well settled that
“[s]imply stating the word, ‘objection’…preserves nothing for appellate
review.” State v. Wolf, 326 S.W.3d 905, 907 (Mo. App. S.D. 2010).
(Internal citations omitted). What is important to preserving issues for
appellate review is that objections “call the attention of the Court to the
ground or reason for the objection.” Id. citing State v. Lang, 515 S.W.2d
507, 511 (Mo. banc 1974). In the present case, defense counsel met this
requirement by calling to the court’s attention the fact that punishing
Appellant for taking the case to trial was in violation of Appellant’s right
to have a trial. The fact that defense counsel neglected to say the actual
word “objection,” which by itself would preserve nothing for appellate
review, should not lead to the conclusion that this claim is not preserved,
particularly when defense counsel met the far more important part of the
21
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
(Mo. App. W.D. 1999). “The court exercises very broad discretion in its
for the objection.
It is also true that the issue was not included in Appellant’s new trial
motion. However, that fact is not of consequence due to the fact that the
new trial motion was required to be filed prior to the sentencing hearing at
which the court’s error occurred, and therefore it would have been
impossible for defense counsel to include the claim in the new trial motion.
State v. Cowan, 247 S.W.3d 617, 618-619 (Mo. App. W.D. 2008).
Neither the fact that defense counsel did not use the precise word
“objection” at the sentencing hearing, nor the fact that the issue was not
included in the new trial motion should lead to a finding a that the issue is
not preserved for appellate review. However, if this Court were to find
that the issue is not preserved, Appellant requests that his claim be
examined under a plain error standard of review pursuant to Rule 30.20.
In reviewing a claim for plain error, appellate courts use a two-step
process. State v. Moreland, 459 S.W.3d 484, 488 (Mo. App. W.D. 2015).
First, it must be determined “whether or not the claimed error facially
establishes substantial grounds for believing that manifest injustice or
miscarriage of justice has resulted.” Id. If this requirement is met, then the
Court has “the discretion to proceed to the second step to consider
22
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
rule regarding objections at trial, in that he pointed to the specific ground
error is left uncorrected.”
Analysis
Section 557.036.1 provides that “upon a finding of guilt upon verdict
or plea, the court shall decide the extent or duration of sentence or other
disposition to be imposed under all the circumstances, having regard to the
nature and circumstances of the offense and the history and character of the
defendant and render judgment accordingly. (Italics added for emphasis). In
other words, “[a] court may not use the sentencing process to punish a
defendant, notwithstanding his guilt, for exercising his right to receive a
full and fair trial.” State v. Vaughn, 940 S.W.2d 26, 29 (Mo. App. S.D. 1997)
quoting United States v. Sales, 725 F.2d 458, 460 (8th Cir. 1984). The reason
for this rule was explained by the Eastern District of this Court in Thurston
v. State, 791 S.W.2d 893 (Mo. App. E.D. 1990):
It is well settled that an accused may not be subjected to more
severe punishment simply because he exercised his right to
stand trial... The courts must not use the sentencing power as
a carrot and stick to clear congested calendars, and they must
not create an appearance of such a practice. Id. at 896 citing
23
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
whether a manifest injustice or a miscarriage of justice will result if the
1982).
Despite this longstanding rule, the court in the present case imposed
a more severe punishment on Appellant based on Appellant’s decision to
exercise his right to have a jury trial rather than plead guilty. The court’s
comment of “why would I want to give somebody treatment that has
never once in this case come in and accepted responsibility and shown any
remorse whatsoever” was the first indication of its desire to give Appellant
a harsher sentence for taking the case to trial. (Sent. Tr. 10). This comment
was a clear reference to the court’s position that Appellant did not deserve
to be sentenced to any sort of institutional treatment due to the fact that he
didn’t plead guilty and “accept responsibility.”
When defense counsel objected on the basis that Appellant should
not be punished because “he exercised his right to have a trial,” the court
stated that it was “not going to penalize him for his right to a trial,” but
then contradicted itself by explaining that it was in fact doing precisely
that. (Sent. Tr. 10). Specifically, the court stated “you are asking for some
consideration and leniency that is normally given to people that come in
and say, Judge, I’ve got a problem, I’m sorry, I did what I did, I shouldn’t
have done it, I was wrong. And he has [not] done that.” (Sent. Tr. 10).
24
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir.
Appellant a harsher sentence for exercising his right to trial than would
have been given if Appellant had pled guilty.
The comments from the court in the present case share similarities
with comments the sentencing court made in State v. Wright, 998 S.W.2d
78 (Mo. App. W.D. 1999). In that case, the court said to the defendant, who
had been found guilty by a jury of two counts of child molestation (Tr. 8081), at sentencing:
In this case, I am going to sentence you in accordance with the
jury's assessment and verdict. I am not going to order the
sentences to run concurrent. There are two separate victims in
this case. You have not accepted responsibility for your crime. And,
in this case, your victimization of these two young girls was
magnified or aggravated by the fact that they were required to
come in and testify. And it was obvious to the Court that it
was a traumatic event for them to come in here to testify in
front of you, as well as the 12 jurors and the Court, as to your
activities last July. And so with those factors and
consideration, Mr. Wright, I am going to sentence you under
Count I to a term of two years in the Department of
25
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
This comment was conclusive evidence of the court’s intention to give
imprisonment. Count II is to run consecutive to Count I. Id. at
82-83. (Italics added for emphasis).
On appeal, the defendant in Wright argued that the court’s
comments at sentencing indicated that he was being punished for
exercising his right to have his case tried to a jury, as evidenced by the
court ordering that the two-year sentences recommended by the jury run
consecutively to one another rather than concurrently. Id. at 82-83. This
Court agreed and remanded the case for a new sentencing hearing. (Id. at
84). In so holding, this Court noted that “the trial court’s
comments…indicate that the Defendant’s sentence was enhanced for
challenging the State’s evidence and proceeding to trial.” Id. at 83.
Just like the defendant in Wright, Appellant’s sentence was
enhanced in retaliation for Appellant exercising his right to have his case
tried to a jury. Furthermore, some of the sentencing court’s comments in
Wright were nearly identical to the language used by the sentencing court
in the present case. Specifically, the court in Wright told the defendant
“you have not accepted responsibility for your crime.” Id. at 82. That
statement is materially identical to the court asking Appellant “why would
I want to give somebody treatment that has never once in this case come in
26
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
Corrections; and under Count II for another two year term of
Tr. 10). Because, as was the case in Wright, the sentencing court’s
comments made clear that Appellant was being punished for exercising
his right have a jury trial, this Court should, consistent with its decision in
Wright, remand his case for a new sentencing hearing with instructions
that.
Conclusion
Because the sentencing court used the fact that Appellant chose to
exercise his right to have his case tried to a jury as a justification for giving
him a harsher sentence than he would have received if he had pled guilty,
this Court should remand his case for a new sentencing hearing. This court
should also instruct the sentencing court to only take into account the
factors authorized by Section 557.036.1, the nature and circumstance of the
offense and the history and character of Appellant, at the new sentencing
hearing.
27
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
and accepted responsibility and shown any remorse whatsoever?” (Sent.
For the reasons presented in the first point of this brief, Appellant
respectfully requests that this Court reverse his conviction for tampering
in the first degree and discharge him for that offense. In addition, for the
reasons presented in the second point of this brief, Appellant respectfully
requests that this Court remand his remaining two convictions for a new,
fair, sentencing hearing.
Respectfully submitted,
/s/ Casey A. Taylor
_________________________________
Casey A. Taylor, MOBar #63283
Attorney for Appellant
Office of State Public Defender
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, MO 65203
(573) 777-9977
FAX (573) 777-9974
casey.taylor@mspd.mo.gov
28
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
CONCLUSION
I, Casey A. Taylor, hereby certify to the following. The attached
brief complies with the limitations contained in Rule 84.06(b) and Special
Rule XLI. The brief was completed using Microsoft Word, Office 2007, in
Book Antiqua size 13 point font, which is no smaller than Times New
Roman size 13 point font. Excluding the cover page, the signature block,
this certificate of compliance and service, and appendix, the brief contains
5,231 words, which does not exceed the 15,500 words allowed for an
appellant’s brief.
On this 17th day of November, 2015, electronic copies of Appellant’s
Brief and Appellant’s Brief Appendix were placed for delivery through the
Missouri e-Filing System to Shaun Mackelprang, Assistant Attorney
General, at Shaun.Mackelprang@ago.mo.gov.
/s/ Casey A. Taylor
_________________________________
Casey A. Taylor
29
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - November 17, 2015 - 03:49 PM
CERTIFICATE OF COMPLIANCE AND SERVICE