STATE OF MISSOURI, Plaintiff-Respondent v. JEFFREY SCOTT KOWALSKI ( 2019 )

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.
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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,
the reviewing court determined that the defendant – who also had undergone a mental
evaluation – was either unable or “unwilling to participate in the proceedings” due to his
refusal to answer questions as well as his bizarre responses when questioned by the court.
607 F.3d at 557-59. The Mosley defendant “wanted to talk … about everything but [his]
case.” Id. at 559.
Here, the trial court revoked Defendant’s right to represent himself after
Defendant had engaged in the following conduct:
 Paying the trial judge’s personal property taxes, apparently in an attempt to create
a conflict of interest and cast doubt upon the legitimacy of the proceedings. At a
pre-trial hearing, Defendant said to the judge, “On November 24th, you received
almost $800.00. I was just wondering what you were going to do with that
money?” The judge replied that he had not received any such payment, but he
later got notice from the Webster County Collector’s Office that Defendant, using
Starprose Corporation, had paid his personal property taxes in that amount. The
judge then had that payment reversed.
 Engaging in inappropriate communications with Dr. Hadfield’s daughters.
Defendant issued an improper subpoena to a teenage daughter that requested her
tweets and call history from 2016. Copies of the subpoenas were never provided
to the State, and Defendant never coherently articulated an explanation of the
teenage daughter’s connection to the case. Defendant also demanded that the
State produce a birth certificate to prove the daughter’s age. Then, in an attempt
to manufacture evidence to support a purported Brady3 violation, Defendant also
had delivered to Dr. Hadfield’s older daughter’s home a package from Amazon
Prime with an included note that stated, “Enjoy your gift, from [Missouri
Attorney General] Josh Hawley.”
 Pulling what Defendant described as various “pranks” on the trial court.
Defendant filed a pleading in which he claimed to speak only Spanish and asked
that a Spanish interpreter be provided for him. Defendant later admitted to the
trial judge that he had filed the pleading as a “joke” and a “prank” because “I just
like messing with you.”
3
See Brady v. Maryland, 373 U.S. 83 (1963).
5
 Announcing his intention to call the trial judge’s wife as a witness at trial.
 Filing a pleading wherein he falsely claimed that the trial judge had a conflict of
interest in the case because he had received income from Defendant’s Starprose
Corporation.
These inappropriate actions all occurred while Defendant was allowed to represent
himself and resulted in the trial court’s decision to revoke Defendant’s bond, appoint
counsel, and order a mental evaluation of Defendant. When the mental evaluation
concluded that Defendant was competent to stand trial and did not suffer from a mental
disease or defect, the trial court denied Defendant’s renewed request that he again be
allowed to represent himself. The trial court based that denial on the following stated
reasons.
[C]onsidering prior proceedings herein, the Court seriously
questions whether [D]efendant can competently represent himself
without significant challenge.
....
The Court cannot disregard the proceedings of this case,
and believes that were [you] to proceed to trial without the
assistance of an attorney, um, it would be an[,] I think[,] great risk
for you to effectively be able to represent yourself, considering
your failures in trying to do so, before you had counsel on this
case.
As I indicated in one of my last entries, one last aspect of
my entry from December 8th, 2017[, D]efendant was perilously
close to being sanctioned either by -- after a motion and hearing, or
in the -- or by the Court’s own initiative.
None of which occurred.
....
Further, I might add, that since the time he [(appointed
counsel)] has represented you, none of the very concerning
proceedings that this court had undertaken before your
6
incarceration and representation by [appointed counsel] had
occurred.
Defendant argues that his conduct differs from that which occurred in Johnson
and Mosley in that, once the trial court informed him that his behavior was disruptive and
constituted an attempt to manipulate the judicial process, Defendant conformed his
behavior to the appropriate standards. Assuming that to be true, the trial court could still
reasonably conclude that Defendant’s obstructionist behavior was as extreme and
disruptive as that exhibited by the defendants in Johnson and Mosley, and “there was
good cause to believe that Defendant would continue to disrupt the trial” if he were again
allowed to proceed without counsel. See Johnson, 328 S.W.3d at 397.
Finding no abuse of discretion, Point 1 is denied.
Point 2 – Insufficiency of the Evidence on Count 1
Point 2 claims the trial court erred in entering judgment and sentence against
Defendant for criminal merchandising practices in that the evidence adduced at his trial
was insufficient to prove that his misrepresentation that Dr. Hadfield owed a $50 debt
was made “in connection with [the] sale of merchandise in trade or commerce” as
required by the Missouri Merchandising Practices Act (“MMPA”).
In general, we review challenges to the sufficiency of the evidence
supporting a criminal conviction for whether the State introduced
sufficient evidence at trial from which a reasonable juror might have
found the defendant guilty beyond a reasonable doubt of all the essential
elements of the crime. State v. Nash, 339 S.W.3d 500, 508-09 (Mo. banc
2011). We accept as true all evidence supporting the jury’s verdict,
including all favorable inferences therefrom, and disregard all contrary
evidence and negative inferences. Id. In our review, we do not act as a
“super juror” with veto powers and will not reweigh the evidence on
appeal; rather, we give great deference to the trier of fact, who may
believe all, some, or none of the testimony of a witness. State v.
Davidson, 521 S.W.3d 637, 643 (Mo. App. W.D. 2017).
7
State v. Young, No. ED 106574, 2019 WL 2504783, at *7 (Mo. App. E.D. June 18,
2019).
Section 407.020.14 of the MMPA provides, in relevant part, as follows:
The act, use or employment by any person of any deception, fraud, false
pretense, false promise, misrepresentation, unfair practice or the
concealment, suppression, or omission of any material fact in connection
with the sale or advertisement of any merchandise in trade or
commerce . . . is declared to be an unlawful practice. Any act, use or
employment declared unlawful by this subsection violates this subsection
whether committed before, during or after the sale, advertisement or
solicitation.
Section 407.010 provides the following relevant definitions:
(4) “Merchandise”, any objects, wares, goods, commodities, intangibles,
real estate or services;
....
(6) “Sale”, any sale, lease, offer for sale or lease, or attempt to sell or
lease merchandise for cash or on credit;
(7) “Trade” or “commerce”, the advertising, offering for sale, sale, or
distribution, or any combination thereof, of any services and any property,
tangible or intangible, real, personal, or mixed, and any other article,
commodity, or thing of value wherever situated. The terms “trade” and
“commerce” include any trade or commerce directly or indirectly affecting
the people of this state.
Count 1 charged the alleged criminal merchandising practice committed by
Defendant as follows:
[D]efendant, in violation of Section 407.020.1 and 407.020.3, RSMo,
committed the class D felony of [criminal merchandising practices], . . . in
that on or about March 3, 2016, in the County of Camden, State of
Missouri, [D]efendant, in connection with the sale of merchandise in trade
and commerce, willfully, knowingly, and with the intent to defraud:
A. Misrepresented to [Dr.] Hadfield that [Dr.] Hadfield owed $50
for an unpaid debt to [D]efendant;
4
RSMo Cum. Supp. 2008.
8
B. Used deception to create [Dr.] Hadfield’s false impression that
[Dr.] Hadfield owed [D]efendant $50 for an unpaid debt;
C. Omitted, concealed, and suppressed to [Dr.] Hadfield the
material fact that [D]efendant had not provided goods and
services to [Dr.] Hadfield[; and]
D. Engaged in an unfair practice by billing, charging or attempting
to collect payment from [Dr.] Hadfield, for merchandise which
[Dr.] Hadfield had not ordered or solicited.
Defendant convincingly argues that the evidence at trial was insufficient to
support his conviction on Count 1 as the State produced no evidence that
Defendant actually sold or leased, or attempted to sell or lease, any merchandise
to Dr. Hadfield. Defendant claims that “in order for debt collection to be
considered ‘in connection’ with the sale of merchandise in trade or commerce,
there must be some original sale or transaction for merchandise on which the debt
in question is being collected.” Thus, if no such evidence was adduced, while
Defendant might be guilty of fraud, he cannot be convicted of criminal
merchandising practices. We agree.
In addressing the meaning of “in connection with” for purposes of section
407.020.1 in Jackson v. Barton, 548 S.W.3d 263, 270 (Mo. banc 2018), our high court
noted that “the MMPA ‘prohibits the use of the enumerated deceptive practices if there is
a relationship between the sale of merchandise and the alleged unlawful action.’” Id.
(citing Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 414 (Mo. banc 2014)). The
unlawful action can occur at any time before, during, or after the sale, and by any person.
Conway, 438 S.W.3d at 414.
In Jackson, the actions of a debt collector were made “in connection with” the
sale of dental services for MMPA purposes. 548 S.W.3d at 272. In that case, LifeSmile
sold dental services to the plaintiff. LifeSmile later hired a debt collector to collect the
9
amount that allegedly remained outstanding. Thus, the debt collector’s actions were
undertaken on behalf of LifeSmile to collect payment for the dental services rendered and
therefore fell within the statute’s ambit. Id. at 271.
Here, unlike what occurred in Jackson, no evidence of a sale or attempted sale of
goods or merchandise in trade or commerce was presented. Thus no relationship between
the alleged unlawful action – the misrepresentation of a $50 debt – and the sale of
merchandise was shown. In fact, the State’s own charging document affirmatively
reveals that absence by alleging that Defendant “concealed . . . the material fact that [he]
had not provided goods and services to [Dr.] Hadfield.” (Emphasis added.)
We also find Watson v. Wells Fargo Home Mtg., Inc., 438 S.W.3d 404, 406
(Mo. banc 2014), instructive on the “in connection with” issue presented in the instant
case. Watson held that loan modification negotiations were not made “in connection
with” the sale of a loan because Wells Fargo was not enforcing the terms of the original
loan when it negotiated the loan modification, and the loan modification was not a
service that the lender agreed to sell or the borrower agreed to buy when the parties
entered into the loan. Id. at 406, 408. Watson contrasted its facts with those in Conway,
where the plaintiffs alleged that the defendants had wrongfully foreclosed on the deed of
trust that the plaintiffs executed when they purchased their property. Watson, 438
S.W.3d at 407 (citing Conway, 438 S.W.3d at 413). Conway concluded that the
allegedly unlawful act was “in connection with” the sale because “when the operative
transaction is the procurement of a loan, the ‘sale’ is not complete when the lender
extends the credit, but continues throughout the time the borrower is making payments on
the loan.” 438 S.W.3d at 407-08.
10
The State argues that Defendant “fraudulently created the impression that he had
provided goods or services to Dr. Hadfield, for which Dr. Hadfield owed him money”
(emphasis added) and that such a misrepresentation falls within the MMPA’s
prohibitions. In support of that claim, the State cites Ports Petroleum Co. of Ohio v.
Nixon, 37 S.W.3d 237 (Mo. banc 2001), for the proposition that the term “unfair
practice” is “unrestricted, all-encompassing and exceedingly broad[, and] cover[s] every
practice imaginable and every unfairness to whatever degree.” Id. at 240. That case is of
no help to the State because it addressed whether the sale of motor fuel below its cost
with the intent to injure competition constituted an “unfair practice” under the MMPA.
Id. Whether Defendant engaged in an unfair practice is not at issue here as Defendant
admits it.
The State also argues that the MMPA defines “merchandise” to include
“services,” and because Defendant used GE Services to carry out his attempt to defraud
Dr. Hadfield, Defendant’s actions were in connection with the sale of merchandise, “that
merchandise being the service provided by GE Services of notifying Dr. Hadfield of the
purported debt and directing him to make payment to [Defendant.]” We fail to see how
the role of the collection agency satisfies the requirement of “a relationship between the
sale of merchandise [or services] and the alleged unlawful action[,]” Jackson, 548
S.W.3d at 270 (citing Conway, 438 S.W.3d at 414), as Defendant did not sell any
merchandise or services to GE Services, and GE Services was not charged with any
wrongdoing. In fact, GE sent out retraction letters and shut down Defendant’s account
when it decided that his collection attempts were illegitimate.
11
As noted in Conway, all MMPA cases must allege a relationship between the sale
of merchandise and the allegedly unlawful conduct. Id. at 415. Here, no such evidence
was presented. Point 2 is granted, and Defendant’s conviction on Count 1 is reversed.
Because the reversal is premised solely upon the insufficiency of the evidence to
support a conviction, no remand for a new trial on Count 1 is permitted. See State v.
Drabek, 551 S.W.3d 550, 561 (Mo. App. E.D. 2018) (holding that a second trial in such a
circumstance is prohibited by the double-jeopardy clause of the United States
Constitution). We therefore remand solely to direct the trial court to enter a judgment of
acquittal on Count 1. All other portions of the judgment are affirmed.
DON E. BURRELL, J. – OPINION AUTHOR
DANIEL E. SCOTT, P.J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS
12