State v. Watkins

• Decision Date: 21 November 2017
• Docket Number: No. SD 34350,SD 34350
• Citation: 533 S.W.3d 838
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bobby A. WATKINS, Defendant-Appellant.
• Court: Missouri Court of Appeals

533 S.W.3d 838

STATE of Missouri, Plaintiff-Respondent,

v.Bobby A. WATKINS, Defendant-Appellant.

No. SD 34350

Missouri Court of Appeals, Southern District, Division One.

Filed: November 21, 2017

JIM R. BRUCE II, Kennett, MO, for Appellant.

GREGORY L. BARNES, Jefferson City, MO, for Respondent.

DON E. BURRELL, J.

Bobby A. Watkins ("Defendant") was found guilty after a bench trial of stealing (Count 1) and forgery (Count 2), and both offenses were categorized and sentenced as class C felonies. See sections 570.030.1 and .3(1) and 570.090.1(3).¹

Defendant's first point on appeal claims the forgery conviction cannot stand because "the [S]tate's only proof consisted of a written job work order" that "is plainly excluded as a basis for the crime of forgery" under section 570.090.1(3), which addresses "anything other than a writing[.]" Point 2, relying on State v. Bazell, 497 S.W.3d 263, 266-67 (Mo. banc 2016), challenges the classification of the stealing conviction as a felony because, at the time of the offense, section 570.030.3 did "not apply to enhance the punishment and classification" of the offense from a misdemeanor to a felony.²

Defendant's third point challenges his conviction and punishment for both offenses as violating his right to be free from double jeopardy in that he suffered "a greater punishment than that authorized by the legislature for stealing under [section] 570.030, and that it imposed multiple or cumulative punishment for the same offense based on the same job work order." Point 4 contends that his "videotaped confession" should have been suppressed because although the officer believed that he "had enough information at the time they began the interview to arrest [Defendant]," the officer "repeatedly assur[ed Defendant] that he was not in custody, or in any trouble no matter what he said," and Defendant made the incriminating statements "before they read him his Miranda rights[.]"³ Finally, Point 5 claims the trial court erred as a matter of law in denying Defendant's request for a suspended imposition of sentence ("SIS") because the trial court "failed to consider circumstances favoring a [SIS]" and instead "focused exclusively" on Defendant forfeiting his office as mayor of the city of Hayti.

Finding merit only in Defendant's challenge to the enhancement of his stealing offense, we reverse Defendant's sentence on Count 1 and remand that count for resentencing as a misdemeanor. See Smith, 522 S.W.3d at 230-31. In all other respects, we affirm the judgment of conviction and sentence.

Evidence and Procedural History⁴

Count 1 of the State's information charged Defendant with "the class C felony of stealing by deceit" (see section 570.030) based upon Defendant's appropriation of "money of a value of at least five hundred dollars" that belonged to the county by representing to the county that the work order for Defendant's relative "was legitimate and accurate, which representation was false and known by [Defendant] to be false and [the county] relied on the representation and was thereby induced to part with" the money. Count 2 charged Defendant with forgery based on section 570.090.1(3) for making the work order "for repairs and parts made in the name of [Defendant's relative] so that it purported to have a genuineness that it did not possess" and did so with the intent to defraud.

Marty Culver was a maintenance worker for Pemiscot County and member of Hayti's city council at the time of the charged conduct. He "became better friends" with Defendant while Defendant was mayor. On several occasions in April 2011, Defendant loaned Mr. Culver money in amounts of "six or seven hundred here, maybe another five or six there." A "scheme was put into place" by Mr. Culver and Defendant to use "the county's money" to pay some of the money Mr. Culver owed Defendant.

In pursuit of that scheme, Mr. Culver "drew up a dummy ticket" ("the work order") in the amount of $758 and "submitted it to the county for payment" as though it were "any other bill[.]" Defendant did not see the work order, but he knew that Mr. Culver "was going to submit a bill to the county in order for [Defendant] to get a check cut to him." A copy of the work order, dated April 6, 2011, was admitted into evidence as Exhibit A. Defendant did not want the work order to be made out in his name because he thought it would then "show up in the newspaper." He therefore suggested that they use the name of one of his relatives as the vendor listed on the work order.⁵ Defendant then gave what Mr. Culver believed to be Defendant's own address to use as the address of the vendor. Mr. Culver dated and signed his initials on the work order before submitting it to the county commission for payment. Defendant's relative had not performed "any of the services" represented on the work order, but the work order "was approved through the County Commission just like any other bill would be[.]"

Mr. Culver never spoke with Defendant's relative, but Defendant subsequently indicated to Mr. Culver that Defendant had received the cash from the check and its amount "was deducted off the balance that [Mr. Culver] owed [Defendant]." Defendant also indicated to Mr. Culver that Defendant's relative "wasn't even aware of" the work order.

Mr. Holder was a captain for the sheriff in September 2011. In that capacity, he began investigating a report of forged documents involving Mr. Culver. After meeting with Mr. Culver, Mr. Holder and another law enforcement officer, "Sergeant Stoelting[,]" interviewed Defendant, and the interview was video-recorded. When a redacted copy of the video was offered at trial as Exhibit C ("redacted video"), Defendant objected to its admission on the ground that Defendant's statements were not "voluntarily made[,]" deception was used to obtain the statements, and "the statements were not taken on [sic] good faith [.]" Defense counsel did not contest the prosecutor's claim that a motion to suppress those statements had not been filed within the time period the trial court had allowed for the filing of such motions. The trial court overruled Defendant's trial objection, granted Defendant's request that it be considered a continuing objection, and allowed the redacted video to be played.

The redacted video provided the following evidence. Defendant regarded himself as an "open book" and was willing to talk with the officers, but he declined an invitation to sign the Highway Patrol's Miranda Rights form. Defendant talked with Mr. Culver about sending the check to Defendant's relative. Mr. Culver had borrowed money from Defendant and still owed him over $1,000. When Mr. Culver offered to "cut [Defendant] a check through the county," Defendant said that he could not be involved in that or have his name on it because his name would "stand out[.]"

After Defendant and Mr. Culver had "thought about it a while[,]" Defendant suggested making the check out to his relative. Defendant said that this was "stupidness" and "weakness" on his part. Mr. Culver had the check printed and brought it to Defendant. Defendant's relative endorsed the check at Defendant's request because the relative trusted him. The "whole thing" was about using someone else's money to pay the money Mr. Culver owed Defendant.

The officers showed Defendant a copy of a check and asked Defendant if he recognized it. Defendant was unsure, but he thought that he might still have a "stub" of the check that had been cashed by his relative. When asked if he could bring the "stub" in, Defendant asked, "Am I digging myself a deeper hole?" Sergeant Stoelting replied that he wanted to make sure that there were no other checks at issue. Defendant copied down the number of the copy of the check he was shown to compare with the "stub" he thought he had at home.

Defendant was not arrested, and he was permitted to leave the sheriff's office at the end of the interview. Defendant later gave Mr. Holder a copy of the check stub that matched the check cashed by Defendant's relative. A copy of the front and back of the check had been reproduced on bank letterhead, and that document was admitted into evidence as Exhibit B. The exhibit also included details about the bank's processing of the check. After deliberation, the trial court found Defendant guilty of both stealing and forgery.

Seven witnesses testified on behalf of Defendant at his sentencing hearing, and defense counsel also submitted "letters" (which were not marked as exhibits) to the trial court, including a letter described as being from a news reporter responding to an "anonymous letter" that had been incorporated into a Probation and Parole report. The trial court took the reporter's letter "into consideration."

The State argued for a suspended four-year sentence, five years of probation, restitution, and "an order under [section] 561.021 indicating that [Defendant] forfeit his office as he has been convicted of a felony." Defense counsel argued that an unsupervised SIS was the appropriate punishment. The trial court sentenced Defendant to four years imprisonment on each count, suspended the execution of those sentences, and placed Defendant on a three-year term of supervised probation.

When defense counsel requested clarification of the sentence, the trial court stated:

It is a suspended execution of sentence.

I know these types of decisions are very difficult to make because the Court recognizes certainly that [Defendant] has worked to help the citizens of Hayti, he appears to have done some good things for that city as mayor. Certainly seems to be a good husband and father. However, he's made a horrible mistake, a crime that has contributed to the growing mistrust of the general public of public officials and government.

The prosecutor requested that "as part of [the] sentence [the trial court] find [Defendant has] forfeited his office under Missouri statute." The trial court responded by saying "so order[ed]."

This appeal timely followed the trial court's...