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State v. Barcelona

Court of Appeals of Missouri, Western District, Second Division

March 24, 2015


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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Lafayette County, Missouri. The Honorable Dennis A. Rolf, Judge.

For Respondent: Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO.

For Appellant: Margaret M. Johnston, Assistant Public Defender, Columbia, MO.

Before Division Two: Anthony Rex Gabbert, Presiding Judge, and Joseph M. Ellis and Karen King Mitchell, Judges. Anthony Rex Gabbert, Presiding Judge, and Joseph M. Ellis, Judge, concur.


Karen King Mitchell, Judge.

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Giovanni Barcelona was tried by a jury for the class D felony of unlawful use of drug paraphernalia, § 195.233,[1] the class D felony of failure to appear, § 544.665, the class A misdemeanor of operating a vehicle without a valid license, § 302.020, and the class B misdemeanor of making a false report, § 575.080. At trial, Barcelona admitted guilt as to the misdemeanor offenses, and the jury found him guilty of the two felony offenses. The court sentenced Barcelona, as a persistent felony offender, to a total of twelve years' imprisonment. In this appeal, he argues that the trial court erred in overruling his motion to suppress and admitting the fruits of an allegedly invalid traffic stop and that the evidence was insufficient to support either felony conviction. We affirm in part and reverse in part.

Factual Background[2]

On February 19, 2012, just before 11:00 p.m., Lafayette County Sheriff's Deputies Dean Koch and Darren McFatrich were dispatched to a residence on Starr School Road, a gravel road in rural Lafayette County southeast of Odessa, Missouri, in response to a call from the homeowner. The homeowner had discovered a stranger on his property who he believed was there to commit a crime; consequently, the homeowner held the individual at gunpoint until the deputies arrived.

Upon their arrival, the deputies observed a man, later identified as Barcelona, with a late-90s-model, white Acura sedan. Barcelona identified himself as Jerry Hill and claimed that he had gotten lost on his way to Topeka, Kansas, after dropping a girl off in Kansas City. Barcelona did not know the girl's name, and he was located about five miles south of the interstate and approximately 30 miles in the opposite direction of Kansas City from Topeka. Though he was able to provide a date of birth, Barcelona could not produce any identification and did not know his social security number.[3] Barcelona was very jittery and nervous, and he kept moving around to the point that Deputy Koch had to advise him to stand still. Deputy Koch believed Barcelona to be under the influence of methamphetamine.

Because Barcelona insisted that he just wanted to get back to Topeka and because the homeowner simply wanted Barcelona off of his property,[4] Deputy Koch determined that the best course of action was to lead Barcelona back to I-70 and direct him towards Topeka. Deputy Koch told Barcelona:

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" You are going to get behind me. You're going to follow me all the way to the interstate. I'm going to get on westbound I-70 and you just keep going until you see Topeka, Kansas signs and you are back where you want to be." Barcelona agreed, thanked the deputies, and followed Deputy Koch back to the interstate. Deputy McFatrich stayed behind briefly to talk with the homeowner before heading back towards westbound I-70 as well.

After traveling approximately one mile on westbound I-70, with Barcelona behind him, Deputy Koch received another dispatch call and sped ahead to respond. By this point, Deputy McFatrich had caught up and was trailing Barcelona. After Deputy Koch sped off, Deputy McFatrich saw Barcelona, who had been driving in the far left lane, abruptly change lanes without warning, cutting off a semi-truck in the process, and exit onto north Highway D in Bates City. There appeared to be no reason for Barcelona's abrupt departure from the interstate, as there were no service stations, restaurants, or other businesses a traveler might require on north Highway D. Deputy McFatrich followed Barcelona briefly on Highway D and contacted Deputy Koch to advise him of Barcelona's seemingly inexplicable actions. Deputy Koch proceeded to north Highway D in search of Barcelona. He caught up with

Deputy McFatrich behind Barcelona's vehicle; Deputy Koch then took the lead and followed Barcelona to see where he was going. Once Barcelona had driven approximately five miles north of the interstate, Deputy Koch initiated a traffic stop, and Deputy McFatrich stopped behind him. Barcelona stopped his vehicle in the middle of the road. Deputy Koch approached Barcelona and asked why he was driving north away from the interstate. Barcelona advised that he was looking for a gas station. Deputy Koch pointed out that Barcelona had driven through two towns with multiple gas stations and had driven the opposite direction of the only gas station at the exit he had taken. Deputy Koch asked Barcelona: " I want to know who you are. What is your name?" Barcelona insisted that his name was Jerry, and when Deputy Koch advised Barcelona that he did not believe him, Barcelona swore that he was Jerry Hill.

Deputy Koch asked Barcelona to step out of the car and stand in front of Deputy Koch's vehicle. Barcelona appeared nervous and continued to fidget and move about incessantly. Deputy Koch asked Barcelona about the ownership of the car he was driving. Barcelona responded that he had been living in a motel and that a girlfriend's neighbor asked him to use the car to drop another girl off in Kansas City. Barcelona could not name either the girl he dropped off or the person that loaned him the car.[5]

Deputy Koch asked for permission to search the car, and Barcelona told him to " go right ahead." In the car, Deputy Koch noticed a backpack in the back seat, so he took it out of the car and brought it to Barcelona. Deputy Koch asked Barcelona if the backpack was his, and Barcelona confirmed that it was. Upon searching the backpack, Deputy Koch discovered syringes and a spoon with residue and cotton rolled up in the center. In his experience, Deputy Koch knew that these items could be used to ingest methamphetamine intravenously.[6] Deputy Koch also

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found some paperwork with the name Giovanni Barcelona on it, so he asked Barcelona if that was his name. Barcelona initially denied his identity, but after Deputy McFatrich discovered a debit card bearing the same name in Barcelona's coat pocket, Barcelona admitted who he was. When asked why he had not provided his true identity, Barcelona indicated that he did not want to get in trouble because he did not have a valid driver's license. Barcelona began to calm a bit and advised the deputies that he had been awake for the last four or five days, using methamphetamine. Deputy Koch observed both of Barcelona's arms to have track marks approximately two inches long, suggesting intravenous drug usage. Deputy Koch field-tested the spoon, and it tested positive for the presence of methamphetamine. Later laboratory testing confirmed that the spoon held .02 grams of methamphetamine residue.

Barcelona was initially charged with first-degree tampering (driving the Acura without the owner's consent), possession of drug paraphernalia, driving without a valid license, and making a false report (for identifying himself as Jerry Hill).

Barcelona filed a motion to suppress the evidence and statements obtained following the stop, arguing--among other things--that Deputy Koch lacked reasonable suspicion for initiating the traffic stop on Highway D. After filing the motion, Barcelona posted bond. A hearing on the motion was scheduled for June 18, 2012, but Barcelona failed to appear. At the hearing, Barcelona's counsel relayed information from Barcelona to the court, suggesting that he had broken his ankle, developed an infection, and was in the hospital. His counsel further indicated that she had been unable to verify that information. The court advised Barcelona's counsel that Barcelona had until noon the following day (June 19, 2012) to appear, and if he failed to do so, the court would issue a warrant. When Barcelona failed to appear on June 19, 2012, the court ordered a warrant for his arrest and raised his bond from $10,000 surety to $15,000 cash only. On June 20, 2012, Barcelona sent the court what purported to be hospital " discharge instructions." The instructions, faxed from a public library in Topeka, were reviewed by the court. The warrant issued the same day, but was not served until September 19, 2012.

In the interim, the State filed an amended information, including an allegation that Barcelona was a persistent felony offender. After Barcelona's arrest, the court held a hearing on the suppression motion, wherein it received testimony from both deputies. Following the hearing, the court denied the motion. The same day, the State filed another amended information, this ...

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