State of Missouri v. Gregory Allen Heidbrink

Gregory Alan Heidbrink (Appellant) appeals from the trial court’s judgment

entered after a jury trial convicting him of receiving stolen property. We affirm in part,

reverse in part, and remand for resentencing.

Factual and Procedural Background

The State charged Appellant, as a prior and persistent offender, with one count of

receiving stolen property, a class C Felony, in violation of Section 570.080,1 for events

occurring on or about September 23, 2015. The evidence adduced at trial, viewed in the

light most favorable to the verdict, is as follows.

In August 2015, Ronald Edwards (Edwards) owned AMG Auto Sales, located in

Kansas City, Missouri. Around that time, Edwards purchased a 2004 Ford F250 Super

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Duty truck. The truck was charcoal gray with chrome trim and leather interior. Edwards

testified the truck was in excellent condition, rated as a 3.7 out of 5.0. Edwards testified

the retail value of the vehicle was $17,400 and that he listed the vehicle for sale on

Craigslist for $13,900.

On August 25, 2015, Edwards noticed the truck was missing from AMG Auto

Sales’ lot and reported the truck stolen the next day. Edwards testified the truck was

eventually returned to him and he found extensive damage to it, including impact damage

on both the front and rear; almost the entire truck had been spray painted black; the fourwheel

drive no longer worked; the front rotors, the parking brake, and the back tires

required replacement; the steering column was completely destroyed; the ignition was

punched out; and the back window was broken out and replaced with plexiglass.

Edwards expended over $4,000 to repair the truck in his own shop and was eventually

able to sell the truck for $11,000.

Sergeant Scott Taylor (Sgt. Taylor) of the Warren County Sheriff’s Department

testified that around 10:00 p.m. on September 23, 2015, he was patrolling an

undeveloped subdivision when he saw a black Ford F250 sitting at the end of the

subdivision with the engine and the lights turned off. Sgt. Taylor saw a man and woman

having intercourse in the passenger seat of the truck. When he approached, Appellant

stepped out of the vehicle and the woman, subsequently identified as Appellant’s wife

Jennifer Heidbrink (Wife), remained in the passenger seat. Appellant and Wife told Sgt.

Taylor they were there to get “some alone time.”

Sgt. Taylor asked Appellant and Wife for the truck’s paperwork, which they were

unable to provide. Sgt. Taylor ran the license plate numbers, which came back as

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possibly stolen. Sgt. Taylor then ran the truck’s vehicle identification number, which

came back as having been reported stolen from the Kansas City area. Sgt. Taylor

arrested both Appellant and Wife.

Sgt. Taylor testified the vehicle was in disarray and it appeared someone was

living in it. The truck contained both male and female clothing, personal items, toiletries

and hygiene products, as well as bedding and towels. The exterior of the truck had been

spray painted black and the back window was broken out and replaced with plexiglass.

Sgt. Taylor testified broken glass was inside the vehicle and the truck bed, and that police

located a crowbar inside the vehicle, which could have been used to break the rear

window. A man’s white tank top was hanging over the steering column and wires were

hanging down from underneath the dashboard. The dashboard below the steering column

was popped open and the ignition was punched out. Sgt. Taylor testified it is common

for the ignition to be punched out of a stolen vehicle so the vehicle can be started with a

tool, like a screwdriver or a pair of pliers, instead of a key. A pair of needle-nose pliers

was located inside a compartment of the driver’s side door.

Sgt. Taylor stated, in his experience, it is common for stolen trucks to have their

rear window broken out as means of accessing the vehicle, for a stolen vehicle’s exterior

color to be altered, for the ignition to be punched out, and for the dashboard to be popped

open in order to bypass the vehicle’s security and ignition systems.

At the conclusion of the evidence, the jury found Appellant guilty of receiving

stolen property. The trial court sentenced Appellant, as a prior and persistent offender, to

8 years of imprisonment to be served consecutive to the sentences he was already serving

in another case and ordered him to pay $4,436 in restitution. This appeal follows.

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Points Relied On

In his first point on appeal, Appellant argues the trial court erred in overruling his

Motions for Judgment of Acquittal and for New Trial, and for entering a judgment of

conviction and sentencing him for receiving stolen property because there was

insufficient evidence to establish beyond a reasonable doubt that he received stolen

property, in that his mere joint presence in a stolen motor vehicle did not establish

beyond a reasonable doubt each and every element of the crime of receiving stolen

property.

In his second point on appeal, Appellant argues the trial court erred in finding him

to be a persistent offender under Section 558.0162 and enhancing his punishment from a

class C felony to a class B felony because those actions violated Appellant’s rights under

Section 558.021,3 in that Appellant was sentenced in excess of the maximum sentence

authorized by law because the State failed to plead and prove “all essential facts”

showing Appellant had pled guilty to or been found guilty of two separate felonies

wherein he was represented by counsel or waived the right to an attorney in writing, as

Appellant’s conviction in Cause No. 12BB-CR00483-01 reflected he was “without

counsel” and therefore could not be used to enhance his punishment.

In his third point on appeal, Appellant argues the trial court erred in ordering him

to pay $4,436 in restitution to Edwards because that action violated Appellant’s rights

under Section 559.105.1,4 in that the restitution ordered was not directly related to

Edwards’ losses due to Appellant’s conduct of receiving the stolen truck.

2 RSMo Supp. 2005.

3 RSMo 2000.

4 RSMo Supp. 2013.

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Discussion

Point I – Sufficiency of the Evidence

On review of a challenge to the sufficiency of the evidence supporting a criminal

conviction, this Court determines whether there was sufficient evidence from which a

reasonable juror could find the defendant guilty beyond a reasonable doubt. State v.

Almaguer, 347 S.W.3d 636, 639 (Mo. App. E.D. 2011). In determining whether

sufficient evidence supports the verdict, this Court considers the evidence, and the

reasonable inferences drawn therefrom, in the light most favorable to the verdict,

disregarding all contrary evidence and inferences. Id. It is the jury’s duty to assess the

reliability, credibility, and weight of the witness’s testimony. State v. Giles, 949 S.W.2d

163, 166 (Mo. App. W.D. 1997).

The elements of receiving stolen property are: (1) receiving, retaining, or

disposing, (2) property of another, (3) for purposes of depriving the owner of his lawful

interest therein, and (4) knowing or believing the property has been stolen. Section

570.080.1., State v. Wright, 383 S.W.3d 1, 6 n. 2 (Mo. App. W.D. 2012). In the Second

Amended Information, the State alleged Appellant, acting either alone or with another

and with the purpose of depriving the owner of the vehicle, received the truck, knowing

or believing it had been stolen.

A defendant’s “mere unexplained possession” of recently stolen property is

insufficient in itself to give rise to an inference the defendant is guilty of receiving stolen

property. State v. Langdon, 110 S.W.3d 807, 812-13 (Mo. banc 2003). However, the

jury may consider unexplained possession together with other facts and circumstances in

finding guilt, such as providing false, evasive or contradictory statements; suspicious

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conduct or deceptive behavior; evidence the property was altered; or evidence the

property was sold for less than its reasonable value. Id. at 813. There is rarely direct

evidence a defendant knew or believed property was stolen but the State may rely on

circumstantial evidence to prove a defendant’s criminal intent. Id.

On appeal, Appellant challenges the sufficiency of the evidence supporting his

conviction for receiving stolen property, asserting the evidence demonstrated only

Appellant’s mere unexplained presence in the truck. We disagree.

The evidence at trial was the condition and contents of the truck exhibited clear

signs it had been stolen including a broken window, a damaged dashboard, a punched-out

ignition, a pair of pliers which could be used to start the vehicle, and modification of the

exterior with spray paint. Based on this evidence, the jury could have reasonably

concluded Appellant knew the vehicle had been stolen.

The State also presented sufficient evidence for the jury to conclude Appellant

had received the vehicle for the purpose of depriving Edwards of his interest in the truck.

Sgt. Taylor testified the vehicle was in disarray and that, based on the contents of the

vehicle, it appeared as if Appellant and Wife were living in the truck. The fact that

Appellant and Wife were engaging in sexual intercourse inside the vehicle reasonably

suggests Appellant and Wife had received the vehicle and were using the vehicle as if it

were their own property. This evidence, along with the alteration of the vehicle’s

appearance, also supports a finding that Appellant intended to deprive Edwards of his

interest in the vehicle. The State presented sufficient evidence from which a reasonable

juror could find Appellant guilty of receiving stolen property. Appellant’s Point I is

denied.

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Point II – Prior and Persistent Offender Status

In the Second Amended Information, the State charged Appellant as a prior

offender and a persistent offender, in that he had previously pled guilty to two felonies

committed at different times. The information stated the qualifying felonies were: (1) on

or about July 23, 2013, Appellant pled guilty to felony possession of a controlled

substance in the circuit court of Warren County for events occurring on May 3, 2012; and

(2) on or about July 31, 2007, Appellant pled guilty to felony criminal non-support in the

circuit court of Warren County for events occurring on April 1, 2006.

Prior to voir dire, the State offered Exhibits 40 and 41, certified copies of

Appellant’s prior convictions to prove his status as a prior and persistent offender.

Exhibit 40 is a certified copy of Appellant’s conviction for felony non-support, and was

admitted without objection. Defense counsel objected to the admission of Exhibit 41, a

certified copy of Appellant’s conviction for felony possession of a controlled substance,

asserting the document did not indicate Appellant was represented by counsel or that he

waived his right to counsel. The document provides that on July 26, 2013, the date of

sentencing on the controlled substance conviction, Appellant appeared in person but

without counsel and no attorney of record is listed. The document states the court

ordered Appellant to pay $65 for the services of appointed counsel and that there was no

probable cause to believe Appellant received ineffective assistance of counsel. Upon

defense counsel’s objection to the exhibit, the following discussion occurred:

THE COURT: Okay. Well, it indicates [Appellant] appeared

without counsel at that time back [on] July 26th of 2013. Is that your only

objection, then?

[Defense Counsel]: Uh, yes, that there’s no indication that he

waived counsel or had counsel.

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THE COURT: I will admit Exhibits 40 and 41 as the prior

convictions just for purposes of that issue. I will admit both of those and

find that the defendant is a prior and persistent offender, so it will be judge

sentencing.

In his motion for new trial, Appellant asserted the trial court erred in finding him

to be a persistent offender in that the State failed to demonstrate he was represented by

counsel or had waived counsel in writing for one of the convictions supporting the

finding.

A prior offender is “one who has pleaded guilty to or has been found guilty of one

felony.” Section 558.016.2. A persistent offender is “one who has pleaded guilty to or

has been found guilty of two or more felonies committed at different times.” Section

558.016.3. Section 588.016 provides the court may sentence a person found to be a

persistent offender to an enhanced sentence, permitting the court to sentence the offender

to the authorized term of imprisonment for the offense that is one class higher than the

offense for which the person is found guilty. Section 558.016. Therefore, a persistent

offender convicted of a class C felony can be sentenced to any sentence for a class B

felony. The punishment for a class C felony is up to 7 years’ imprisonment and for a

class B felony is between 5 and 15 years’ imprisonment. Section 558.011.1.5

Section 558.021 establishes the procedure required for determining whether a

defendant is a prior and persistent offender. Section 558.021; State v. Teer, 275 S.W.3d

258, 261 (Mo. banc 2009). The following requirements must be met before the trial court

can find a defendant to be a prior and persistent offender: (1) the State pleads in the

indictment or information, original or amended, or in the information in lieu of

indictment, all essential facts warranting a finding that the defendant is a prior and

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persistent offender; (2) the State introduces sufficient evidence to warrant a finding that

the defendant is a prior and persistent offender; and (3) the trial court finds beyond a

reasonable doubt that the defendant is a prior and persistent offender. Section 558.021.1;

State v. Russ, 945 S.W.2d 633, 634 (Mo. App. E.D. 1997). All facts necessary to

establish prior offender status “shall be pleaded, established and found prior to

submission to the jury outside of its hearing[.]” Section 558.021.2; Teer, 275 S.W.3d at

261.

“Among the facts the state must prove is that defendant was represented by

counsel at the proceedings on the convictions or that defendant was advised of that right

and voluntarily waived it.” Russ, 945 S.W.2d at 634; State v. McGreevey, 832 S.W.2d

929, 932 (Mo. App. W.D. 1992). “Representation by counsel or waiver thereof cannot be

presumed from a silent record.” State v. Givens, 851 S.W.2d 754, 760 (Mo. App. E.D.

1993).

In this case, Appellant objected to the admission of the State’s Exhibit 41, the

certified copy of his conviction for felony possession of a controlled substance, because

the document did not indicate Appellant was represented by counsel or that he waived his

right to counsel. Although the document indicates Appellant had been ordered to pay for

the services of appointed counsel and that there was no probable cause to believe

defendant received ineffective assistance of counsel, it is also uncontested that no

attorney appeared on Appellant’s behalf at sentencing and there is no attorney of record

listed for Appellant. After Appellant’s objection to Exhibit 41, the trial court

acknowledged the document indicated Appellant appeared without counsel but denied

Appellant’s objection without explanation.

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On appeal, the State argues it is not required to prove Appellant had or waived

counsel during the prior proceeding in order to enhance a sentence based on that prior

conviction because it is not required by the statute and the precedent supporting this

requirement has been eroded. Contrary to the State’s assertions, the law still requires the

State to prove the defendant was represented by counsel or voluntarily waived his right to

counsel in the prior felony proceeding if the State wants to use the conviction to enhance

the defendant’s punishment for another offense.

It is undisputed that a conviction obtained in violation of a defendant’s

Sixth Amendment right to counsel cannot be used in a subsequent

proceeding “either to support guilt or enhance punishment for another

offense.” Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d

319 (1967). In Burgett, we held that an uncounseled felony conviction

obtained in state court in violation of the right to counsel could not be used

in a subsequent proceeding to prove the prior-felony element of a

recidivist statute. To permit such use of a constitutionally infirm

conviction, we explained, would cause “the accused in effect [to] suffe[r]

anew from the [prior] deprivation of [his] Sixth Amendment right.” Ibid.;

see United States v. Tucker, 404 U.S. 443, 448, 92 S.Ct. 589, 30 L.Ed.2d

592 (1972) (invalid, uncounseled prior convictions could not be relied

upon at sentencing to impose a longer term of imprisonment for a

subsequent conviction); cf. Loper v. Beto, 405 U.S. 473, 483–484, 92

S.Ct. 1014, 31 L.Ed.2d 374 (1972) (plurality opinion) (“use of convictions

constitutionally invalid under Gideon v. Wainwright to impeach a

defendant’s credibility deprives him of due process of law” because the

prior convictions “lac[k] reliability”).

United States v. Bryant, 136 S. Ct. 1954, 1962–63, 195 L. Ed. 2d 317 (2016), as

revised (July 7, 2016).

In order to use Appellant’s prior felony conviction for possession of a controlled

substance to enhance his punishment in this case, the State was required to prove that

conviction was obtained in accordance with Appellant’s Sixth Amendment right to

counsel. The State failed to do so by presenting evidence proving Appellant was either

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represented by counsel or voluntarily waived his right to counsel in that proceeding prior

to the present case’s submission to the jury.

We further reject the State’s contention on appeal that it should be permitted to

submit additional evidence on remand proving Appellant’s persistent offender status.

Section 558.021 requires a defendant’s prior offender status be pleaded and proven prior

to the case being submitted to the jury. Section 558.021; Teer, 275 S.W.3d at 261; State

v. Severe, 307 S.W.3d 640, 644-645 (Mo. banc 2010). The State had the opportunity to

present the necessary evidence but failed to do so and is not entitled to “two bites at the

apple.” Severe, 307 S.W.3d at 645 (State not permitted to present additional evidence of

prior offenses on remand). Because the State failed to present sufficient evidence

supporting a finding that Appellant was a persistent offender, the cause is remanded for

resentencing as a class C felony, prior offender. Appellant’s Point II is granted.

Point III – Restitution

In his third point, Appellant contends the trial court erred in ordering him to pay

$4,436 in restitution to Edwards because Edwards’ damages were not directly related to

Appellant’s conduct of receiving the stolen truck. The evidence at trial was that

Appellant was in prison when the truck was stolen and, therefore, could not have

personally stolen the vehicle.

At the sentencing hearing, after the court indicated it was going to order

restitution, Appellant stated, “Judge, could I – I mean to the extent you are able to, uh,

can you order that joint and several at least.” The trial court indicated it was unable to do

so because Wife had not yet been convicted.

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Appellant failed to specifically object to the imposition of restitution at the

sentencing hearing, and thus this claim can be reviewed for plain error only. Rule 30.20;

State v. Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001). Under the plain error

standard, we will reverse when a plain error affecting a substantial right results in

manifest injustice or a miscarriage of justice. Rule 30.20; State v. Nylon, 311 S.W.3d

869, 884 (Mo. App. E.D. 2010). It is the defendant’s burden to demonstrate that the error

prejudiced him. State v. Johnson, 220 S.W.3d 377, 385 (Mo. App. E.D. 2007).

Pursuant to Section 559.105.1,6 the trial court may order any person found guilty

of an offense to make restitution to the victim for the victim’s losses “due to” the offense.

“The plain and unambiguous meaning of the phrase ‘due to’ is ‘because of.’” State ex

rel. Bowman v. Inman, 516 S.W.3d 367, 369 (Mo. banc 2017), citing Webster’s Third

New International Dictionary 699 (2002).

Here, Appellant received the stolen vehicle and is connected to the property and

damage inflicted upon it. While some of the damage may have occurred during the initial

theft of the vehicle, by knowingly receiving the stolen property, Appellant is still

connected to Edwards’ losses. Appellant acknowledged that restitution was appropriate

at least to some extent at the sentencing hearing by asking for restitution to be ordered

“joint and several[.]” Appellant has failed to demonstrate the trial court committed a

plain error resulting in a manifest injustice or a miscarriage of justice. Appellant’s Point

III is denied.

6 RSMo Supp. 2013.

The judgment of the trial court is affirmed in part, reversed in part, and remanded for resentencing.