IN THE
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI,
Respondent,
v.
DUSTIN GIBSON,
Appellant.
Appeal from the Lafayette Circuit Court
Fifteenth Judicial Circuit
The Honorable Dennis A. Rolf, Judge
RESPONDENT’S BRIEF
CHRIS KOSTER
Attorney General
COLETTE NEUNER
Assistant Attorney General
Missouri Bar No. 36287
P.O. Box 899
Jefferson City, MO 65102
Tel.: (573) 751-3321
Attorneys for Respondent
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No. WD78588
TABLE OF AUTHORITIES .................................................................................3
STATEMENT OF FACTS ....................................................................................5
ARGUMENT ...................................................................................................... 15
I.. ...................................................................................................................... 15
II....................................................................................................................... 23
CONCLUSION ................................................................................................... 28
CERTIFICATE OF COMPLIANCE .................................................................. 29
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TABLE OF CONTENTS
Cases
In the Interest of V.L.P., 947 S.W.2d 546 (Mo. App. W.D. 1997) .............. 18, 21
Jackson v. Virginia, 443 U.S. 307 (1979).................................................... 10, 16
State v. Bateman, 318 S.W.3d 681 (Mo. banc 2010) ........................................ 15
State v. Brewster, 836 S.W.2d 9 (Mo. App. E.D. 1992).................................... 23
State v. Burton, 198 S.W.2d 19 (Mo. 1946) ...................................................... 23
State v. Chaney, 967 S.W.2d 47 (Mo. banc 1998) ........................................... 16
State v. Collins, 290 S.W.3d 736 (Mo. App. E.D. 2009) ................................... 26
State v. Crawford, 68 S.W.3d 406 (Mo. banc 2002) ......................................... 16
State v. Dulany, 781 S.W.2d 52 (Mo. banc 1989) ............................................. 17
State v. Freeman, 269 S.W.3d 422 (Mo. banc 2008) .................................. 15, 16
State v. Grim, 854 S.W.2d 403 (Mo. banc 1993) .............................................. 16
State v. Hineman, 14 S.W.3d 924 (Mo. banc 1999) .......................................... 18
State v. Holleran, 197 S.W.3d 603 (Mo. App. E.D. 2006) ................................ 18
State v. Lindsey, 996 S.W.2d 577 (Mo. App. W.D. 1999) ........................... 23, 26
State v. O’Brien, 857 S.W.2d 212 (Mo. banc 1993) .......................................... 16
State v. Palmer, 193 S.W.3d 854 (Mo. App. S.D. 2006) ................................... 26
State v. Presberry, 128 S.W.3d 80 (Mo. App. E.D. 2004) ................................ 21
State v. Randle, 456 S.W.3d 535 (Mo. App. E.D. 2015) ................................... 20
State v. Vaughn, 940 S.W.2d 26 (Mo. App. S.D. 1997) .................................... 23
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TABLE OF AUTHORITIES
State v. Wright, 998 S.W.2d 78 (Mo. App. W.D. 1999) .............................. 25, 26
tate v. Nash, 339 S.W.3d 500 (Mo. banc 2011) ........................................... 15, 16
Taylor v. State, 392 S.W.3d 477 (Mo. App. W.D. 2012) ....................... 24, 26, 29
Thurston v. State, 791 S.W.2d 893 (Mo. App. E.D. 1990) ......................... 25, 26
Statutes
Section 557.036 RSMo (2003) ............................................................................ 24
Section 562.016 RSMo (2000) ............................................................................ 17
Section 569.080 RSMo (2005) ............................................................................ 17
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State v. Villa-Perez, 835 S.W.2d 897 (Mo. banc 1992) ..................................... 17
This is an appeal from the Circuit Court of Lafayette County judgment
convicting Appellant (“Defendant”) of one count of assault on a law
enforcement officer in the third degree, one count of first degree tampering
with a motor vehicle, and one count of resisting arrest, for which he was
given a total sentence of nineteen years. L.F. 35.1
Defendant was charged as a persistent offender with one count of class
C felony of assault of a law enforcement officer in the second degree for
recklessly placing Deputy Dean Koch (“Deputy Koch”) in apprehension of
immediate serious physical injury by suddenly applying the brakes of the
stolen Dodge Dakota he was driving, one count of class C felony tampering in
the first degree for knowingly and without the consent of the owner
unlawfully operating a Dodge Dakota, and one count of class D felony of
resisting a lawful stop for preventing Deputy Koch from making the lawful
stop when Defendant fled in the Dodge Dakota at speeds in excess of 90 miles
per hour in a 55 mile per hour zone from the deputy in a manner that created
a substantial risk of serious physical injury or death to other persons as he
1
Citation to the transcripts is as follows: Legal file (L.F.); trial setting
proceedings (TSTr.); Motion for Bond Reduction (BRTr.); jury trial on March
4, 2015 (Tr.); and sentencing hearing on April 20, 2015 (STr.).
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STATEMENT OF FACTS
11-12.
Defendant pleaded guilty or was found guilty of felony tampering in the
first degree on February 25, 2009, felony possession of a controlled substance
on May 20, 2002, and felony stealing on November 7, 1988. L.F. 11-12; Tr. 56, 12-13.
On October 20, 2014, Defendant set this matter for a trial setting and
confirmed he would lose his chance for a plea bargain. TSTr. 2. On November
17, 2014, Defendant requested a bond reduction that the State opposed due to
Defendant’s four prior felonies, including tampering first degree, stealing or
altering and failure to appear. BRTr. 2. The court denied the Motion for Bond
Reduction. BRTr. 3.
Defendant was tried by jury on March 4, 2015, with Judge Dennis A.
Rolf presiding. L.F. 35-36; Tr. 1. A Motion in Limine for Defendant’s prior
convictions was granted by agreement. Tr. 15. The court found Defendant
was a persistent offender and the jury found Defendant guilty of one count of
assault on a law enforcement officer in the third degree, one count of felony
first degree tampering with a motor vehicle, and one count of felony resisting
arrest/detention/stop by fleeing-creating a substantial risk of serious
injury/death to any person. L.F. 7, 30, 35-36; Tr. 14. The court sentenced
Defendant to one year of imprisonment for the third degree assault, twelve
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forced other drivers into a ditch to avoid a collision on July 24, 2014. L.F. 7,
resisting arrest conviction, with the assault sentence to run concurrently
with sentences for tampering and resisting arrest, which are to run
consecutively for a total of nineteen years’ imprisonment. L.F. 17-18. The
court did not find probable cause for ineffective assistance of counsel. L.F. 36;
STr. 19. Defendant contests the sufficiency of the evidence to support his
conviction for tampering and contends the trial court abused its discretion in
deciding his sentence. Viewed in the light most favorable to the verdict, the
following evidence was determined at trial:
Midday, on July 24, 2014, 18 year-old Lance Rivas (“Rivas”) watched as
his newly purchased Dodge Dakota was stolen out of his boss’ driveway after
Rivas had returned from the store to purchase groceries for his boss’ family.
Tr. 190, 192. The boss’ “ten-year-old son said, somebody is stealing your
truck,” and Rivas ran out the front door of his boss’ home to run after his
truck, “took about a step into the road and seen (sic) my truck coming directly
at me. So I backed up and watched it drive away.” Tr. 196, 202. Rivas had
searched his entire senior year for the right vehicle and “put the down
payment on the truck[,]” and got a loan to pay for it. Tr. 205. He didn’t let
anyone, not “even his parents, drive my truck. I mean, it means a lot to me.”
Tr. 198-200, 204. Rivas’s mother Bobbi Sue Jones testified that she had
helped her son purchase the truck less than two weeks before it was stolen,
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years for the first degree tampering conviction and seven years for the
registration materials were in the truck. Tr. 210. Mrs. Jones also stated that
she had never seen Defendant before and had not given him permission to
operate her son’s truck. Tr. 211.
Inside his truck, Rivas left his wallet with $120.00 cash, his cell phone,
his tools, his tackle box, his turkey tags and his CD’s. Tr. 198-199. His wallet
was returned to him without the $120.00. Tr. 199. The cash was stolen along
with all the other items inside his truck. Tr. 199-200.
Eight hours later on the same day in the nine o’clock hour, Deputy
Koch, a fourteen year veteran of law enforcement, was dispatched to the I-70
trailer park to look for “a green Dodge Dakota pickup with a Missouri temp
tag.” Tr. 215-216. As the deputy entered the trailer park, he met a gold car
and behind it was the green Dodge Dakota. Tr. 216. Deputy Koch pulled up to
the Dodge Dakota “and the driver was actually rolling down the window to
speak to me…[saying] the vehicle you are looking for is the gold car in front
of me.” Tr. 216-217. The deputy found this behavior strange because he didn’t
have any calls about a gold car and he never told the Defendant he was
looking for a certain car or for a stolen car. Tr. 217. After Defendant spoke to
Deputy Koch, he started to drive away, but the gold car stopped, forcing
Defendant to stop. Tr. 218. The deputy “tried to get around in front of both of
them[,]” then turned his emergency lights on.” Tr. 218-219. Defendant took
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that they were in the process of getting the truck registered, and that all the
ensued. Tr. 219.
Deputy Koch testified that through his training experience, he was
taught “that a person would slam the brakes on to cause us to run into the
back of the vehicle….[causing]…air bags [to] deploy,…possible radiator
damage[][that would] render[] the patrol unit inoperable[][,] [t]herefore, the
pursuit is over.” Tr. 225. Over Defendant’s objection of speculation as to
Defendant’s intent, the deputy testified Defendant was driving 90 miles an
hour, then would brake in “an attempt to try to make me run into the back of
him.” Tr. 223. The first objection was sustained, but the second objection for
the same reason was overruled so that Deputy Koch could testify as to the
same tactic, and not to Defendant’s intent. Tr. 224. The deputy testified that
he could have been killed and Defendant once again objected for speculation,
but the court told the State to lay a foundation and overruled a second
objection for speculation when Deputy Koch once again said he believed he
would have died if he ran into the back of Defendant’s truck when he
slammed on his brakes while driving so fast. Tr. 226-228.
Deputy Koch said Defendant slammed on his brakes four different
times during the pursuit while he was driving 90 miles per hour in a 55 mile
limit zone. Tr. 229. The road is basically a straight shot, except for a set of S
curves as it meets a highway. Tr. 242-243. Additionally, the deputy testified
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off “through all the yards” in the green Dodge Dakota truck. Tr. 219. A chase
traffic and then Defendant would move completely over into that lane to force
the oncoming traffic to drive into the ditch on the side of the road. Tr. 231232. Defendant drove straight at them at 90 miles per hour. Tr. 231. After
Defendant ran the oncoming vehicle off the road, he returned to his proper
lane, and remained there until another vehicle appeared in the oncoming
traffic lane. Tr. 232. Fortunately, there was no accident, but Deputy Koch
stated that if one of these vehicles would have been flipped over or crashed, “I
would have had to stop and assist them[,]” thereby ending the pursuit. Tr.
233.
At this time, Deputy Koch was the only officer in pursuit, although
there was another officer trying to catch up to him. Tr. 233. The deputy
testified that “[i]t was one of the more scarier pursuits I’ve had” in 14 years of
law enforcement. Tr. 249. Due to the dangerous situation, Deputy Koch was
advised to call off the pursuit, so he turned off his lights and siren, but
continued to follow Defendant at the posted speed limit. Tr. 234-235, 245.
Defendant crossed out of Lafayette County and into Jackson County. Tr. 235.
In time, an officer from the Buckner Police Department picked up the pursuit
and Deputy Koch remained for officer safety reasons since the Buckner officer
was also alone. Tr. 237.
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that Defendant would remain in his appropriate lane until he saw oncoming
area” and the Buckner officer was outside his car, yelling for Defendant to
exit the vehicle. Tr. 238. Defendant held the accelerator down to the floor and
“the tires were just spinning, throwing mud everywhere.” Tr. 238. Deputy
Koch also approached the Defendant and yelled at him to “get out of the
vehicle.” Tr. 238. Deputy Leasy, also from Lafayette County, had caught up
with Deputy Koch and all three law enforcement officers had to pull
Defendant out of the truck.” Tr. 238-239. Deputy Koch testified that
Defendant “wrestled us and we took him to the ground. He laid on his
stomach with hands under him. We were trying to pull his hands out,
couldn’t get his hands out; didn’t know if he had anything in his hands….He
wasn’t complying at all.” Tr. 239.
Defendant continued to wrestle with the officers and Deputy Koch
warned him “that if he didn’t stop he was going to be tased. He didn’t. I said
taser, taser, taser three times and then I did what was called a dry
stun….not actually shooting the probes…” Tr. 239. Defendant became
compliant and was taken into custody. Tr. 239-240. Deputy Koch found the
keys to the truck in the truck and the title on Defendant’s person. Tr. 247.
The green Dodge Dakota was towed back to Lafayette County. Tr. 240.
In Defendant’s closing argument to the court, he stated that there was
no evidence that he stole the Dodge Dakota or knew the truck was stolen, and
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Defendant crashed the green Dodge Dakota into a “very muddy ditch
The court disagreed and denied Defendant’s Motion of Judgment of Acquittal
at the Close of State’s Evidence. L.F. 13-14; Tr. 252, 254.
Defendant chose not to testify, and the court confirmed that he knew he
had to right to testify, have an attorney and be questioned by the State’s
counsel. Tr. 257. The court also denied Defendant’s Motion at the Close of All
of the Evidence. L.F. 15-16; Tr. 260.
In his closing argument to the jury, Defendant argued for assault in the
third degree as opposed to the second degree, for which he was charged,
stating that Deputy Koch’s training would have prevented him from
immediate physical danger. Tr. 296. At the sentencing hearing, Defendant
continued to argue that no one identified him as the person who stole the
truck. STr. 2. The State responded that Defendant was not charged with
stealing in Lafayette County, but was found guilty for tampering in the first
degree, and had told Deputy Koch that the “vehicle you are looking for is over
there[]” without the deputy even asking a question. STr. 4. This behavior,
combined with “his subsequent actions, his driving, his running, there was no
other evidence as to why he would have ran but for the fact that he knew he
was operating a stolen vehicle…” STr. 4. The court agreed and denied the
Motion for Judgment of Acquittal Notwithstanding the Verdict or in the
Alternative Motion for New Trial.” L.F. 33-34; STr. 5.
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there was no evidence of Defendant’s intent to cause physical injury. Tr. 251.
of Corrections for the tampering and resisting arrest and 1 year in jail on the
assault conviction, while the Defendant argued for ten years and seven year
concurrently or for long-term treatment. STr. 6, 10. The court interrupted
Defendant and asked, “…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?” STr. 10. Defendant, through his counsel,
responded: “He exercised his right to have a trial.” STr. 10. The court then
said: “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.” STr. 11.
Defendant, again through his counsel, recommended concurrent seven year
sentences. STr. 11.
Defendant then addressed the court on his own and said his counsel
was completely inefficient and explained why. STr. 12-15. The court
pronounced its sentence and said in regard to the conviction for resisting a
lawful stop, “Because of the actions displayed - - during the resisting a lawful
stop, I am giving the Defendant seven years, not because I think that is what
he deserves, but because it is the limit that I can give him. If it was up to me
I would give him more because his conduct in that regard was dangerous and
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The State argued for a sentence of 22 years in the Missouri Department
19.
.
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terrible.” STr. 17. The court did not find ineffective assistance of counsel. STr.
I. The trial court did not err when it found sufficient evidence to
support Defendant’s convictions of first degree tampering because a fact
finder could reasonably find that Defendant knowingly drove the stolen
Dodge Dakota and knew it was stolen by his actions of 1) directing Deputy
Koch to another vehicle without the deputy requesting the information; and
2) speeding away from the deputy’s pursuit. (Responding to Defendant’s
Point 1).
A. Standard of Review
When considering sufficiency-of-evidence claims, this Court’s review is
limited to determining whether the evidence is sufficient for a reasonable
juror to find each element of the crime beyond a reasonable doubt. State v.
Nash, 339 S.W.3d 500, 508–09 (Mo. banc 2011); State v. Freeman, 269
S.W.3d 422, 425 (Mo. banc 2008). “This is not an assessment of whether the
[appellate court] believes that the evidence at trial established guilt beyond a
reasonable doubt but [is] rather a question of whether, in light of the
evidence most favorable to the State, any rational fact-finder ‘could have
found the essential elements of the crime beyond a reasonable doubt.’” Nash,
339 S.W.3d at 509 (quoting State v. Bateman, 318 S.W.3d 681, 687 (Mo. banc
2010)). “In reviewing the sufficiency of the evidence, all evidence favorable to
the State is accepted as true, including all favorable inferences drawn from
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ARGUMENT
contrary are disregarded.” Id. See also State v. O’Brien, 857 S.W.2d 212, 215–
16 (Mo. banc 1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (to
ensure that the reviewing court does not engage in futile attempts to weigh
the evidence or judge the witnesses’ credibility, courts employ “a legal
conclusion that upon judicial review all of the evidence is to be considered in
the light most favorable to the prosecution.”).
“An appellate court ‘faced with a record of historical facts that supports
conflicting inferences must presume—even if it does not affirmatively appear
in the record—that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” State v. Chaney, 967 S.W.2d
47, 54 (Mo. banc 1998) (quoting Jackson v. Virginia, 443 U.S. at 326); see also
Freeman, 269 S.W.3d at 425 (holding that an appellate court should “not
weigh the evidence anew since ‘the fact-finder may believe all, some, or none
of the testimony of a witness when considered with the facts, circumstances
and other testimony in the case’”) (quoting State v. Crawford, 68 S.W.3d 406,
408 (Mo. banc 2002)); see also Nash, 339 S.W.3d at 509.
Appellate courts do not act as a “super juror with veto powers”; instead
they give great deference to the trier of fact. State v. Grim, 854 S.W.2d 403,
405 (Mo. banc 1993); State v. Chaney, 967 S.W.2d at 52; Nash, 339 S.W.3d at
509; Freeman, 269 S.W.3d at 425. Appellate courts may neither determine
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the evidence.” Nash, 339 S.W.3d at 509. “All evidence and inferences to the
S.W.2d 897, 900 (Mo. banc 1992). It is within the trier of fact’s province to
believe all, some, or none of the witnesses’ testimony in arriving at the
verdict. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Circumstantial
evidence is given the same weight as direct evidence in considering the
sufficiency of the evidence. Grim, 854 S.W.2d at 405–06.
B.
Sufficient evidence to convict existed because Defendant’s actions
proved he knew the Dodge Dakota was stolen and that he did not have the
owner’s permission to drive it.
Defendant was charged with first degree tampering with a motor
vehicle. Section 569.080.1(2) states in part that “[a] person commits the crime
of tampering in the first degree if: (2) He or she knowingly receives,
possesses, …or unlawfully operates an automobile…without the consent of
the owner thereof.” §569.080.1(2) RSMo (2005). “A person “acts knowingly,”
or with knowledge, (1) With respect to his conduct or to attendant
circumstances when he is aware of the nature of his conduct or that those
circumstances exist; or (2) With respect to a result of his conduct when he is
aware that his conduct is practically certain to cause that result.” §562.016.3.
Defendant argues there was insufficient evidence to support his
tampering conviction because it did not show that he knowingly operated the
Dodge Dakota without the consent of the owner, and instead, that Defendant
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the credibility of witnesses, nor weigh the evidence. State v. Villa-Perez, 835
this case permits a reasonable inference that Defendant operated the truck
without the owner’s permission and knew he was doing so. “Intent usually is
not susceptible of direct proof, but may be, and generally is, established by
circumstantial evidence.” In the Interest of V.L.P., 947 S.W.2d 546, 547 (Mo.
App. W.D. 1997). “There are numerous types of ‘other facts and
circumstances’ that, together with the unexplained possession of recently
stolen property, are sufficient to establish knowledge.” State v. Holleran, 197
S.W.3d 603, 611 (Mo. App. E.D. 2006). “The defendant’s mental state may be
determined from evidence of the defendant’s conduct before the act, from the
act itself, and from defendant’s subsequent conduct.” Holleran at 611 quoting
State v. Hineman, 14 S.W.3d 924, 927-28 (Mo. banc 1999). “The inference [of
consciousness of guilt] likewise applies when a police officer observes a
defendant operating or tampering with a stolen vehicle, and defendant flees
upon contact with the police officer.” Holleran at 611.(omitting internal
citations).
Rivas testified that he had spent his senior year in high school looking
for the right vehicle and that he had taken out a loan on it and made a down
payment on it. Tr. 205. Rivas’ mother, Mrs. Jones, testified that she helped
her son purchase the truck less than two weeks before it was stolen. Tr. 210.
She also said all the registration materials were in the truck. Tr. 210. Rivas
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was never identified as the person who stole the truck. But the evidence in
198-200. Mrs. Jones stated that she had not given Defendant permission to
drive her son’s truck. Tr. 211. Rivas had driven his truck into his boss’
driveway and left his personal belongings inside while he dropped off some
groceries. Tr. 191-192. When his boss’ son told him that his truck was being
stolen, Rivas ran outside his boss’ home toward his truck. Tr. 196, 202. The
thief then drove directly at Rivas as Rivas stepped into the road. Tr. 196.
Rivas backed up and “watched it drive away.” Tr. 196.
Rivas and his mother’s testimony clearly shows that Rivas was the
owner of the green Dodge Dakota that Defendant was driving when Deputy
Koch approached him in the trailer park, then pursued him in a high speed
chase through two counties, where he was eventually apprehended, although
it required Defendant being wrestled out of the truck and tased in order to
arrest him, since he “wasn’t complying at all.” Tr. 238-240.
The evidence also clearly shows that Defendant did not have the
owner’s permission to operate his Dodge Dakota, and Defendant’s actions
easily revealed that he knew he didn’t have the owner’s permission to operate
the Dodge Dakota. Defendant misled law enforcement when approached
about the Dodge Dakota into directing Deputy Koch to a gold car as the
vehicle he was seeking, then taking off in the Dakota through the lawns,
driving at high speeds, braking at 90 miles per hour four times in hopes of
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testified that he didn’t let anyone, not even his parents, drive his truck. Tr.
inoperable, as well as moving into oncoming traffic when a car approached in
order to cause an accident and end the pursuit.
If Defendant didn’t know the truck was stolen and that he didn’t have
permission to operate it, there would be no reason for his horribly dangerous
and life-threatening driving and tactics. Deputy Koch said in his 14 years in
law enforcement that this was one of the more scarier pursuits in which he
had been involved and he was concerned that he could have been killed with
Defendant’s braking at high speeds and driving into oncoming traffic tactics.
Tr. 229, 249. Additionally, Defendant’s conduct of flooring the vehicle,
“throwing mud everywhere,” refusing to get out of the truck when told by two
officers to do so, wrestling with three officers when they had to pull him out
of the truck and refusing to take his hands out from underneath him when he
got stuck in the muddy ditch is indicative of a person caught doing something
he should not have been doing, namely knowingly driving a stolen green
Dodge Dakota without permission from the owner. Tr. 238-239.
This case is similar to State v. Randle, 456 S.W.3d 535, 538 (Mo. App.
E.D. 2015), where the silver Pontiac Grand Am had been reported stolen
earlier the same day the officer recognized the car and the defendant at a red
light, and the defendant ran the red light, speeding at a high rate of speed
with the officers in pursuit. In that case, the defendant drove erratically,
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the deputy running into him and deploying his airbags to make the patrol car
defendant alleged he did not knowingly operate the car without the consent
of the owner, but the court held, “[b]ased on the totality of the facts and
circumstances, including [d]efendant’s exclusive possession of the recently
stolen Grand Am and his flight from police while driving the stolen vehicle,
there was sufficient evidence from which a reasonable trier of fact could find
that [d]efendant knowingly operated the stolen Grand Am without the
owner’s consent.” Id. at 540.
Defendant’s reliance on State v. Presberry, 128 S.W.3d 80 (Mo. App.
E.D. 2004), and In the Interest of V.L.P., 947 S.W.2d 546, is misplaced
because one defendant was in the parked vehicle and the other defendant
stopped the car when law enforcement pulled him over. The automobile in In
the Interest of V.L.P., 947 S.W.2d at 548, was leased in January and the
defendant was arrested four months later in May, thus there was no evidence
that the car had been recently stolen or that the defendant knew it was
stolen. In the Presberry case, again there was no evidence the defendant
knew it had been stolen in November 2000 when he was arrested in
December 2000. Presberry, 128 S.W.3d at 98. Neither of those cases showed
any damage to the stolen vehicles, which would have been an indication that
they were forcibly taken, nor was there any evidence that either vehicle was
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running stop signs, and weaving in and out of traffic. Id. at 538. The
was stolen.
Additionally, the defendants in those cases did not direct law
enforcement to another car as Defendant did when he told Deputy Koch
immediately upon encountering him, “the vehicle you are looking for is the
gold car in front of me.” Tr. 216-217. The defendants in the cited cases did not
then take off “through all the yards” and lead law enforcement on a two
county high speed chase, braking four times while speeding at 90 miles per
hour in order for Deputy Koch to hit him and deploy his airbags, and
deliberately driving into oncoming traffic in an attempt to cause a serious
accident that would also end the pursuit as the deputy would have to stop
and assist any accident victim as the Defendant did in this case. No, there is
nothing similar in Defendant’s behavior from the cited cases.
Defendant knowingly operated the green Dodge Dakota owned by Rivas
without the consent of Rivas and is not entitled to any relief.
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recently taken. Here, the stolen Dodge Dakota was located the same day it
Defendant because the court specifically stated it was not going to penalize
him for pursuing his right to a trial instead of pleading guilty. (Responding to
Defendant’s Point 2).
A. Standard of Review
“The trial court has a duty to undertake a case by case, defendant by
defendant, evaluation in determining an appropriate punishment fashioned
to both the crime and the criminal.” State v. Lindsey, 996 S.W.2d 577, 579
(Mo. App. W.D. 1999) citing State v. Brewster, 836 S.W.2d 9, 15 (Mo. App.
E.D. 1992). “[T]he trial court’s experience and expertise enable the judge to
consider appropriate sentencing factors and to disregard improper matters.
Lindsey at 579-580, citing State v. Vaughn, 940 S.W.2d 26, 30 (Mo. App. S.D.
1997). “The court exercises very broad discretion in its sentencing function.”
Lindsey, 996 S.W.2d at 580, citing State v. Burton, 198 S.W.2d 19, 22 (Mo.
1946). “Review is for abuse of discretion shown by ‘a motive [] of partiality,
prejudice or oppression or induced by corruption’”. Id. “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.” Lindsey, 996 S.W.2d at
580. (internal citations omitted).
B. The trial court did not abuse its discretion by considering Defendant’s
failure to take responsibility or express remorse in sentencing him.
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II. The trial court did not err or abuse its discretion when it sentenced
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.” §557.036.1 RSMo (2003). “When…a record establishes that the
trial court relied on persuasive proper factors and evidence to impose
sentence other than the defendant’s exercise of a constitutional right, and
where there is no evidence directly connecting the imposed sentence with the
exercise of that right, the record conclusively shows the movant is not
entitled to relief.” Taylor v. State, 392 S.W.3d 477, 494 (Mo. App. W.D. 2012).
In the sentencing proceedings of this case, Defendant asked the court
for long-term treatment and the court responded by asking “…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? “ STr. 10.
The court acknowledged Defendant’s right to trial, but then reviewed proper
factors in the record, including but not limited to, the history and character of
the Defendant. The court stated “I understand that [he exercised his right to
have a trial] and I’m not going to penalize him for [it]. 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.” STr. 11.
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“Upon a finding of guilt upon verdict or plea, the court shall decide the
Koch were dangerous as he braked four times while speeding at 90 miles per
hour on a straight highway, hoping the deputy would hit him and deploy his
airbags and thus ending the pursuit, and as he deliberately moved into the
oncoming traffic lane when a vehicle approached, hoping that car would be in
an accident serious enough to force the deputy to stop and assist any harmed
persons. Defendant was present before the court five times and never showed
remorse for his actions. Defendant blamed the meth he had used, his
childhood and his attorney for his actions and his conviction, but never took
responsibility for endangering so many lives. STr. 12-14. Despite the court
discussing his right to testify, whereby he could have decried his actions, he
chose not to take that opportunity. Tr. 257.
The court continued and said, “Because of the actions displayed - during the resisting a lawful stop, I am giving the Defendant seven years, not
because I think that is what he deserves, but because it is the limit that I can
give him. If it was up to me I would give him more because his conduct in
that regard was dangerous and terrible.” STr. 17. (emphasis added). The
court specifically stated that it was the actions displayed, a proper factor of
character for the court to consider, that led to Defendant’s sentence.
Defendant’s reliance on State v. Wright, 998 S.W.2d 78 (Mo. App. W.D.
1999), and Thurston v. State, 791 S.W.2d 893 (Mo. App. E.D. 1990), is
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In this case, the Defendant’s actions while being pursued by Deputy
or a finding about sentencing that directly connected an enhanced sentence
with actual consideration of an improper desire to punish exercise of a
constitutional right.” Taylor, 392 S.W.3d at 489. “In…those cases, there was
no doubt that retaliatory intent was a ‘determinative factor,’ that is to say, an
actual factor, in sentencing.” Id. But in this case, as in “Lindsey, Palmer, and
Collins[,] each involved a trial court’s generalized observation about the
absence of remorse.” Taylor, 392 S.W.3d at 490; Lindsey, 996 S.W. 2d at 580
(trial court sentence nine times longer than recommended by the State
upheld because the court may take into account the defendant’s character
and attitude toward the offense); State v. Palmer, 193 S.W.3d 854, 856 (Mo.
App. S.D. 2006)(defendant’s thirteen year sentence upheld because trial court
considered several factors, including use of terror as a tool and the disregard
of the law in an accumulation of twenty traffic citations); State v. Collins, 290
S.W.3d 736, 746-747 (Mo. App. E.D. 2009)(defendant’s sentence of thirteen
years upheld because trial court took into consideration his lack of remorse
and failure to take responsibility for his actions).
In those cases, as in Taylor, “[n]otably missing…was that which was
present in Wright [and] Thurston…words stated by or attributed to the trial
court that directly connected the imposition of enhanced sentencing with a
comment about the exercise of a constitutional right.” Taylor, 392 S.W.3d at
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misplaced as those cases “each involved statements by the sentencing judge
account Defendant’s failure to take responsibility and to show remorse in
sentencing him.
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491. Therefore, the trial court did not abuse its discretion in taking into
The Court should affirm Defendant’s convictions and sentences.
Respectfully submitted,
CHRIS KOSTER
Attorney General
/s/Colette Neuner
COLETTE NEUNER
Assistant Attorney General
Missouri Bar No. 36287
P.O. Box 899
Jefferson City, MO 65102
Tel.: (573) 751-3321
Attorneys for Respondent
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CONCLUSION
I certify that this brief complies with Rule 84.06(b) and Western
District Rule XLI and contains 5,327 words, excluding the cover, the table of
contents, the table of authorities, this certification, and the signature block,
as counted by Microsoft Word; and that an electronic copy of this brief was
sent through the Missouri eFiling System on February 10, 2016, to:
Casey A. Taylor
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, MO 65203
Casey.taylor@mspd.mo.gov
CHRIS KOSTER
Attorney General
/s/Colette Neuner
COLETTE NEUNER
Assistant Attorney General
Missouri Bar No. 36287
P.O. Box 899
Jefferson City, MO 65102
Tel.: (573) 751-3321
Attorneys for Respondent
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CERTIFICATE OF COMPLIANCE AND SERVICE