STATE OF MISSOURI, Plaintiff-Respondent v. JEFFREY SCOTT KOWALSKI

CourtMissouri Court of Appeals
DecidedNovember 5, 2019
DocketSD35734, SD35752
StatusPublished

This text of STATE OF MISSOURI, Plaintiff-Respondent v. JEFFREY SCOTT KOWALSKI (STATE OF MISSOURI, Plaintiff-Respondent v. JEFFREY SCOTT KOWALSKI) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE OF MISSOURI, Plaintiff-Respondent v. JEFFREY SCOTT KOWALSKI, (Mo. Ct. App. 2019).

Opinion

STATE OF MISSOURI, ) ) Plaintiff-Respondent, ) ) v. ) Nos. SD35734 and SD35752 ) (consolidated) JEFFREY SCOTT KOWALSKI, ) ) Filed: November 5, 2019 Defendant-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY

Honorable Michael O. Hendrickson

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Jeffrey Scott Kowalski (“Defendant”) was convicted of one count of the class-D

felony of unlawful merchandising practices (see section 407.0201) (“Count 1” or

“criminal merchandising practices”), one count of the class-A misdemeanor of deceptive

business practices (see section 570.140), one count of the class-B misdemeanor of

identity theft (see section 570.223), and one count of the class-B misdemeanor of

attempted stealing by deceit (see section 564.011). Defendant’s first point claims he was

improperly denied the right to represent himself at trial. Point 2 challenges the

sufficiency of the evidence to support his conviction for criminal merchandising

practices.

1 RSMo Cum. Supp. 2008. Unless otherwise noted, all other statutory citations are to RSMo 2016.

1 Finding merit only in Defendant’s second point, we reverse his conviction on

Count 1 and affirm the judgment in all other respects.

The Evidence

In reviewing the sufficiency of the evidence to support a criminal conviction, we

view the evidence in the light most favorable to the State and give it the benefit of all

reasonable inferences that might be drawn therefrom. State v. Loewe, 893 S.W.2d 880,

882 (Mo. App. S.D. 1995). The following recitation of the evidence relevant to

Defendant’s points is presented in accordance with that standard.

In 2016, Dr. Timothy Hadfield (“Dr. Hadfield”), the superintendent of a local

school district, received an envelope that listed Defendant as the return addressee. Inside

the envelope was an IRS form that claimed Dr. Hadfield had received $600.00 from

Starprose Corporation. He interpreted the form ‒ which required him to provide his

social security number ‒ to mean that he had not paid taxes on $600.00 worth of income

from that entity. Starprose Corporation also sent Dr. Hadfield an email at his school

email address that included an IRS W-9 form as an attachment. The email asked Dr.

Hadfield to return the completed form to enable him to receive payments from Starprose

Corporation.

Dr. Hadfield, who had not had any business dealings with either Starprose

Corporation or Defendant, did not return either document. Instead, he contacted the

Missouri Superintendent’s Association in an attempt to figure out what was going on.

That organization contacted the Missouri Attorney General’s office, and Dr. Hadfield

learned that other school officials and state employees had received similar letters.

2 A few months later, Dr. Hadfield received a notice that claimed he owed an

unpaid debt in the amount of $50.00. The letter was from GE Services, and it directed

Dr. Hadfield to send the $50.00 owed to Defendant at Starprose Corporation. Dr.

Hadfield did not know Defendant, and he had no idea why Defendant was sending him a

bill for $50.00. Because the letter looked official, Dr. Hadfield asked his school’s

attorney to respond to GE Services. Shortly thereafter, Dr. Hadfield received a retraction

letter from GE Services that indicated Defendant had abused its collection system and

that Defendant’s account had been deactivated as a result of that abuse.

Defendant testified at trial in his own defense, and he admitted to sending the

letters and emails to Dr. Hadfield and others as part of what he claimed was a “misguided

and complicated prank, directed at people that he thought had clout in Missouri.”

Additional evidence will be mentioned as necessary in our analysis of Defendant’s

points.

Analysis

Point 1 – Forfeiture of Right to Self-Representation

Defendant’s first point claims the trial court “plainly erred” in denying his

repeated requests to represent himself because those requests “were timely, unequivocal,

knowing, voluntary, and intelligent[.]”2

“The Sixth Amendment grants an accused the right to counsel, as well as the

related right to waive counsel and proceed pro se.” United States v. Mosley, 607 F.3d

555, 558 (8th Cir. 2010). “A criminal defendant who makes a timely, informed, voluntary

2 As will be noted, infra, Defendant was allowed to represent himself for a significant period of time, but his right to do so was later revoked based upon certain obstructionist conduct Defendant had engaged in. Although Defendant requests review for plain error, our standard of review of a ruling denying a defendant’s request to proceed pro se is for an abuse of discretion. State v. Johnson, 328 S.W.3d 385, 394 (Mo. App. E.D. 2010). In any event, Defendant’s claim would fail under either standard.

3 and unequivocal waiver of the right to counsel may not be tried with counsel forced upon

him by the State.” State v. Hampton, 959 S.W.2d 444, 447 (Mo. banc 1997).

However, a defendant’s right of self-representation is not absolute; it can be terminated when the defendant engages in serious obstructionist misconduct. U.S. v. Edelmann, 458 F.3d 791, 808–809 (8th Cir.2006) (quoting Faretta [v. California, 422 U.S. 806, 834, n.46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975))]. On that determination, we review for an abuse of discretion. Id.

Johnson, 328 S.W.3d at 394. See also State v. Blackmon, 664 S.W.2d 644, 648 (Mo.

App. S.D. 1984) (holding that the trial court did not abuse its discretion in requiring

defendant to stand trial with assistance of counsel given the results of defendant’s

psychiatric report). “The government’s interest in ensuring the integrity and efficiency of

the trial at times outweighs the defendant’s interest in acting as his own lawyer.”

Johnson, 328 S.W.3d at 395 (quoting Mosley, 607 F.3d at 558).

Here, neither party disputes that Defendant’s request to represent himself was

made timely, unequivocally, knowingly, and intelligently. In September 2016, Defendant

waived his right to counsel and was allowed to represent himself through August 2017.

At that time, a new judge was assigned to the case (“the trial court”). After conducting a

hearing, the trial court continued to allow Defendant to proceed without an attorney.

That status changed in December 2017, when the trial court revoked Defendant’s

bond and appointed counsel to represent him due to inappropriate pre-trial conduct

Defendant engaged in while acting on his own behalf. The issue in this appeal is whether

the trial court abused its discretion in ruling that Defendant had forfeited his right to

represent himself due to those behaviors.

In Johnson, the defendant was held to have forfeited his right to self-

representation by incessantly impugning his lawyers, ranting to the court, using

4 obscenities, and going on tirades that impeded the judicial proceedings and led the court

to order that defendant undergo a mental evaluation. 328 S.W.3d at 396-97. In Mosley,

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Related

Brady v. Maryland
373 U.S. 83 (Supreme Court, 1963)
Faretta v. California
422 U.S. 806 (Supreme Court, 1975)
United States v. Mosley
607 F.3d 555 (Eighth Circuit, 2010)
United States v. Mary K. Edelmann
458 F.3d 791 (Eighth Circuit, 2006)
State v. Hampton
959 S.W.2d 444 (Supreme Court of Missouri, 1997)
State v. Johnson
328 S.W.3d 385 (Missouri Court of Appeals, 2010)
Ports Petroleum Co., Inc. of Ohio v. Nixon
37 S.W.3d 237 (Supreme Court of Missouri, 2001)
State v. Blackmon
664 S.W.2d 644 (Missouri Court of Appeals, 1984)
State v. Nash
339 S.W.3d 500 (Supreme Court of Missouri, 2011)
Shelby E. Watson v. Wells Fargo Home Mortgage, Inc.
438 S.W.3d 404 (Supreme Court of Missouri, 2014)
State v. Loewe
893 S.W.2d 880 (Missouri Court of Appeals, 1995)
State v. Davidson
521 S.W.3d 637 (Missouri Court of Appeals, 2017)
Jackson v. Barton
548 S.W.3d 263 (Supreme Court of Missouri, 2018)
State v. Drabek
551 S.W.3d 550 (Missouri Court of Appeals, 2018)

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STATE OF MISSOURI, Plaintiff-Respondent v. JEFFREY SCOTT KOWALSKI, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-missouri-plaintiff-respondent-v-jeffrey-scott-kowalski-moctapp-2019.