State v. Gomez, s. WD

• Decision Date: 19 October 1993
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. Pablo GOMEZ, Appellant. Pablo GOMEZ, Appellant, v. STATE of Missouri, Respondent. 45288, WD 46612.
• Court: Missouri Court of Appeals

Page 652

863 S.W.2d 652

STATE of Missouri, Respondent, v. Pablo GOMEZ, Appellant.

Pablo GOMEZ, Appellant, v. STATE of Missouri, Respondent.

Nos. WD 45288, WD 46612.

Missouri Court of Appeals Western District.

Oct. 19, 1993.

Rosalynn Koch, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., F. Martin Dajani, Asst. Atty. Gen., Jefferson City, for respondent.

Before ULRICH, P.J., and BERREY and SMART, JJ.

ULRICH, Presiding Judge.

Pablo Gomez was convicted by a jury of fraudulently stopping payment of a check in violation of Section 570.125 RSMo (1986). Mr. Gomez was sentenced to three years imprisonment. Additionally, Mr. Gomez's postconviction Rule 29.15 motion was denied. He appeals the judgment of conviction and denial of his Rule 29.15 motion.

Mr. Gomez alleges three points on appeal. He claims that (1) insufficient evidence to support the conviction was presented; (2) the trial court's refusal to allow him to proceed pro se at trial deprived him of his right to counsel and his right to conduct his own defense; and (3) the motion court erred in denying his Rule 29.15 motion because his appointed counsel's refusal or failure to present certain defenses that he desired to pursue constituted denial of his right to effective assistance of counsel.

The judgment of conviction is affirmed. The judgment denying Mr. Gomez's Rule 29.15 motion is affirmed.

FACTS

Viewed in the light most favorable to the verdict, State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992), the evidence at trial established that Mr. Gomez, a resident of St. Louis, was involved in an automobile accident. His vehicle was taken to Perry Legend Collision Repair Center in Columbia ("Perry Legend"). Mr. Gomez's insurance company "totaled" the car and told him it would pay him approximately $6,000.00. Mr. Gomez received a written estimate from an employee of Perry Legend that to repair the vehicle would cost $4,554.89. Mr. Gomez was told that the actual cost of repairing the vehicle could vary from the estimate by as much as $500.00. During his discussion with Perry Legend, Mr. Gomez disclosed what his insurance company was paying him for the damage sustained by the vehicle.

As Perry Legend began the repairs, more damage was identified by Perry Legend. A representative of Perry Legend contacted Mr. Gomez and told him of the additional damage and that the additional cost of repair would be about $500.00. On several subsequent occasions, additional damage was identified and each time a Perry Legend representative telephoned Mr. Gomez ¹ and asked for approval to repair the damage for an additional charge. Mr. Gomez approved the additional repairs each time approval was sought, but he filed a complaint with the Better Business Bureau. Perry Legend informed the Better Business Bureau that the increases had been approved beforehand. The final bill was $5,863.21.

Mr. Gomez went to Columbia on Saturday, February 23, 1990. He test drove the car and complained that the radio was not working. A Perry Legend employee explained to Mr. Gomez that the radio was not considered a part of the estimated cost of repair. Mr. Gomez signed an acceptance form, accepting the automobile in its repaired form, and wrote a check to Perry Legend in the amount of the final bill. ² He was informed that Perry Legend "prosecutes" insufficient funds or stopped payment checks which are in violation of Missouri law.

The following Monday, February 26, 1990, Mr. Gomez caused a "stop payment" order to issue on the check he gave Perry Legend. The reason given to the bank was that he was "dissatisfied with the service." Mr. Gomez testified that he stopped payment because he disagreed with the cost of repair increases and because he experienced problems with the repairs. ³

Perry Legend contacted Mr. Gomez's wife who stated that she did not want to get "in the middle of it," but she said that she would have Mr. Gomez return the call. Mr. Gomez did not speak with anyone at Perry Legend after he acquired custody of his car.

Mr. Gomez tendered partial remuneration to Perry Legend a second time. On March 1, 1990, the Thursday after stopping payment on his check, Mr. Gomez obtained a certified check for $5,000.00. He mailed that check to Perry Legend from Washington, D.C., on Saturday, March 3, 1990.

Mr. Gomez interrupted the second tendered payment. On March 6 or 7, after returning to St. Louis, Mr. Gomez caused the appropriate bank to stop payment on the certified check, telling the bank that it had been lost. Mr. Gomez testified that he caused the bank to stop payment on the cashier's check because he experienced problems with the car as he drove it back from Washington, D.C., and he had learned that Perry Legend had refused to arbitrate the increased cost of repair.

Mr. Gomez did not contact Perry Legend even after he received a "ten-day letter" from Perry Legend. ⁴ Perry Legend attempted to contact Mr. Gomez at the accounting firm where he had worked as an auditor. The accounting firm informed the Perry Legend representative that Mr. Gomez no longer worked there. Mr. Gomez had moved to California and taken employment there.

Perry Legend referred the matter to the Boone County prosecutor, and Mr. Gomez was arrested and tried before a jury. The jury returned a verdict of guilty. Mr. Gomez was sentenced as a prior and persistent offender ⁵ to three years imprisonment.

I

As his first point on appeal, Mr. Gomez claims that the evidence at trial was not sufficient to establish that he fraudulently stopped payment on an instrument. When sufficiency of the evidence is at issue, appellate courts consider all substantial evidence and inference in the light most favorable to the verdict and reject all contrary evidence and inferences. State v. Martin, 852 S.W.2d 844, 848 (Mo.App.1992) (citing State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992)). Appellate courts do not weigh the evidence. Martin, supra at 848 (citing State v. Feltrop, 803 S.W.2d 1, 11 (Mo. banc) cert. denied, 501 U.S. 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1991)). Courts of appeal do not determine the credibility of witnesses. Martin, supra at 848. The jury determines the credibility of witnesses and may believe all, some or none of a witness's testimony in arriving at a verdict. Id. (citing State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989)). Review in the appellate court is limited to determining whether substantial evidence was presented from which a jury could find the defendant guilty beyond a reasonable doubt. Martin, supra at 848-49 (citing Dulany, supra at 55). Substantial evidence is evidence from which the trier of fact could reasonably find the issue in harmony with the verdict. Martin, supra at 849.

Mr. Gomez testified that his conduct was his effort to resolve a dispute with Perry Legend over the increased price charged to repair his vehicle. However, the testimonies of the state's witnesses provided substantial evidence that the jury could find beyond a reasonable doubt that Mr. Gomez acted with fraudulent intent when he stopped payment on the $5,863.21 personal check he presented to Perry Legend as payment for work done on his car. ⁶ The testimonies of Perry Legend employees indicated that Mr. Gomez did not protest the cost of repair increases when he acquired the car from Perry Legend. Mr. Gomez made no attempt to contact Perry Legend after the stop payment, other than sending the cashier's check without explanation. The jury weighed the credibility of the state's witnesses, the evidence presented, and the credibility of Mr. Gomez's testimony. The jury determined that Mr. Gomez acted with fraudulent intent when he stopped payment on the personal check made to Perry Legend. The state's evidence was sufficient for a reasonable jury to find Mr. Gomez guilty of the crime charged. Mr. Gomez's first point is denied.

II

Mr. Gomez also claims as his second point on appeal that the trial court abused its discretion by denying Mr. Gomez his right to counsel and his right to conduct his own defense. The court denied Mr. Gomez's request to proceed pro se and appointed counsel to represent him.

Mr. Gomez perceived a conflict with the first public defender appointed to represent him. He filed a motion to remove counsel. The public defender then appointed another assistant as "conflicts" attorney to represent Mr. Gomez. Mr. Gomez, without presenting any grounds to the trial court, moved that he be appointed private counsel despite not having the ability to pay for private counsel. When the court denied that motion, Mr. Gomez made an oral motion to proceed pro se. Mr. Gomez did not allege any conflict or problem with the second public defender.

The record appears that Mr. Gomez's decision to proceed pro se pretrial was made "on the spur of the moment" and was responsive to his unsuccessful attempt to have private counsel appointed or to his unsuccessful attempt to present a motion to dismiss which he had drafted. The trial court rejected Mr. Gomez's motion to dismiss and stated that Mr. Gomez then had new counsel and that the court would entertain motions from counsel only. The trial court then denied Mr Gomez's motion to represent himself stating that the court did not think Mr. Gomez was able to represent himself without counsel.

Two months passed before Mr. Gomez attempted to file another motion. This motion to proceed pro se came during trial after jury selection. During the two months between motions, Mr. Gomez did not indicate to the court that he wished to represent himself. The trial court again denied the motion, "[i]n view of the fact that this case has already commenced."

Before trial, Mr. Gomez wished to present defenses based on civil law. He believed that any civil remedy he might have would be a defense against the criminal charges. Mr. Gomez's public defender, instead, chose to defend on the lack of criminal intent, arguing and presenting...