Weekley v. State

164 S.W.3d 155, 2005 Mo. App. LEXIS 841, 2005 WL 1283963
CourtMissouri Court of Appeals
DecidedJune 1, 2005
DocketNo. 26409
StatusPublished

This text of 164 S.W.3d 155 (Weekley v. State) 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
Weekley v. State, 164 S.W.3d 155, 2005 Mo. App. LEXIS 841, 2005 WL 1283963 (Mo. Ct. App. 2005).

Opinion

JOHN E. PARRISH, Presiding Judge.

Gary Lee Weekley (movant) was convicted, following a jury trial, of the class C felony of receiving stolen property. § 570.080.1 See State v. Weekley, 92 S.W.3d 327 (Mo.App.2002). He was charged as, found to be, and sentenced as a persistent offender. § 558.016.3. Following incarceration, movant filed a motion for post-conviction relief as permitted by Rule 29.15. An evidentiary hearing was held, after which the motion court entered findings of fact and conclusions of law and denied the motion. Movant appeals the denial of his Rule 29.15 motion. This court affirms.

Movant contends he received ineffective assistance of counsel at trial in his criminal case and in the direct appeal of that case. He claims his trial counsel rendered ineffective assistance because he failed to call Kim Poole as a witness and failed to have an expert witness who testified about the value of the water heater that was the subject of the trial examine the water heater. Movant claims his appellate counsel was ineffective because he did not assert on appeal that the evidence was not sufficient to establish that movant knew or believed the water heater he sold was stolen.

Section 570.080 provides, as applicable to movant’s case:

1. A person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he receives, retains or disposes of property of another knowing that it has been stolen, or believing that it has been stolen.
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3. Receiving stolen property is a class A misdemeanor unless the property involved has a value of one hundred fifty dollars or more, or the person receiving the property is a dealer in goods of the type in question, in which cases receiving stolen property is a class C felony.

The opinion in movant’s direct appeal sets forth the facts that resulted in his criminal charge and conviction. Facts applicable to the issues raised in this appeal are stated in the discussion that follows of the points movant asserts regarding the denial of his Rule 29.15 motion.

Appellate review of a Rule 29.15 motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). “Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made.” State v. Gilpin, 954 S.W.2d 570, 575 (Mo.App.1997).

Roberson v. State, 989 S.W.2d 192, 193 (Mo.App.1999).

Movant’s first point argues that the motion court erred in denying his Rule 29.15 motion because he received ineffective assistance of counsel in the direct [157]*157appeal of his criminal case in that his appellate counsel failed to assert that there was insufficient evidence to support mov-ant’s conviction for the offense of receiving stolen property. Movant argues that the evidence at trial was not sufficient to establish he knew or believed the water heater that was the subject of the criminal case had been stolen; that had this issue been raised in the direct appeal his conviction would have been reversed.

The motion court found:

In Movant’s Motion, Movant alleged ... that he received ineffective assistance of counsel due to appellate counsel failing to assert on direct appeal that the evidence was insufficient to support Movant’s conviction in that no evidence was presented to prove that Movant knew or believed the water heater had been stolen. In order to support a claim of ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it. Moss v. State, 10 S.W.3d 508 (Mo.banc [20]00). This is clearly not the case and Movant is grasping at straws.

In Hutchison v. State, 150 S.W.3d 292 (Mo. banc 2004), the court held:

To support a claim of ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error that would have required reversal had it been asserted and that was so obvious from the record that a competent and effective appellate lawyer would have recognized and asserted it.

Id. at 303.

Evidence at trial included that in October 2000, movant possessed a water heater that was the basis of his being charged with receiving stolen property. Movant sold the water heater to John and Vauda Lineberry for $40. Movant told the Line-berrys the water heater was from mov-ant’s old trailer house. Mr. and Mrs. Li-neberry contacted the sheriffs office to determine if the water heater was stolen property. They learned that on July 31, 2000, the water heater had been discovered missing from a cabin that belonged to Eugene Holloway and Robert Coon, Jr.

Because direct evidence that a defendant knew or believed property was stolen is seldom available, the state normally is forced to rely on circumstantial evidence to prove a defendant had knowledge that the property was stolen. See State v. Langdon, 110 S.W.3d 807, 813 (Mo. banc 2003). Evidence of unexplained possession of recently stolen property is a “circumstance that the jury is entitled to consider together with the other facts and circumstances in the case.” State v. Gardner, 741 S.W.2d 1, 9 (Mo. banc 1987), cert. denied, 486 U.S. 1025, 108 S.Ct. 2001, 100 L.Ed.2d 232 (1988).

In addition to possessing the water heater, movant was deceptive about its origin and sold the water heater for a price below its market value. The motion court found that appellate counsel was not ineffective in failing to assert on appeal that the evidence was not sufficient to support a finding that movant knew or believed the water heater had been stolen. The motion court concluded that a competent and effective appellate lawyer would not have determined that such a claim would require reversal on appeal. That finding is not clearly erroneous. Point I is denied.

Points II and III are claims of ineffective assistance of trial counsel. Point II complains that movant’s trial counsel was ineffective because he failed to call Kim [158]*158Poole as a witness for movant at the trial of movant’s criminal case. Point III argues that trial counsel was ineffective in not having defense expert witness, Charles Fiske, examine the water heater prior to trial of the criminal case “so that he could make a credible determination of its value.”

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Moss v. State
10 S.W.3d 508 (Supreme Court of Missouri, 2000)
Hutchison v. State
150 S.W.3d 292 (Supreme Court of Missouri, 2004)
Sanders v. State
738 S.W.2d 856 (Supreme Court of Missouri, 1987)
State v. Gardner
741 S.W.2d 1 (Supreme Court of Missouri, 1987)
State v. Woods
861 S.W.2d 326 (Missouri Court of Appeals, 1993)
State v. Walden
861 S.W.2d 182 (Missouri Court of Appeals, 1993)
State v. Weekley
92 S.W.3d 327 (Missouri Court of Appeals, 2002)
State v. Langdon
110 S.W.3d 807 (Supreme Court of Missouri, 2003)
Clark v. Quality Dairy Company
400 S.W.2d 78 (Supreme Court of Missouri, 1966)
State v. Gilpin
954 S.W.2d 570 (Missouri Court of Appeals, 1997)
Reece v. State
891 S.W.2d 863 (Missouri Court of Appeals, 1995)
Roberson v. State
989 S.W.2d 192 (Missouri Court of Appeals, 1999)
Matt v. State
992 S.W.2d 269 (Missouri Court of Appeals, 1999)

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Bluebook (online)
164 S.W.3d 155, 2005 Mo. App. LEXIS 841, 2005 WL 1283963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weekley-v-state-moctapp-2005.