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State v. Osborn

Court of Appeals of Missouri, Western District, Second Division

October 11, 2016


         Appeal from the Circuit Court of Clay County, Missouri The Honorable Larry D. Harman, Judge

          Before Karen King Mitchell, Presiding Judge, and Cynthia L. Martin and Gary D. Witt, Judges.


         Wesley Osborn appeals, following a bench trial, his convictions of unlawful possession of an explosive weapon, § 571.020, [1] and failure to appear, § 544.665, for which he was sentenced to consecutive terms of six years and three years, for a total sentence of nine years' imprisonment. Osborn brings six points on appeal, collectively challenging: (1) the trial court's refusal to accept his guilty plea to failure to appear; (2) the sufficiency of the evidence supporting both convictions; and (3) the trial court's determination that Osborn was competent to stand trial. Finding no error, we affirm.


         On June 13, 2013, at 7:17 a.m., Kansas City police officer Richard Burnett received a "check the welfare" dispatch call to Osborn's residence in Clay County. Burnett arrived with a sergeant and two other officers. They knocked on the front door several times with no response. At one point, they heard movement in the garage, which-along with information from a neighbor indicating they had seen someone in the driveway moments earlier-caused them to believe that someone was present inside. The officers "backed off" and initiated an "Operation 100." An Operation 100 is initiated when the officers believe someone is inside a house who presents a danger to either himself or others. A tactical team arrived, along with a negotiator to speak with the person inside.

         After the negotiator arrived, he spoke off-and-on with Osborn for approximately one hour. During the various conversations, Osborn indicated that there was "stuff" inside the residence, which he described as a clay-type material that he believed was an explosive. Osborn advised that it was inside a Ziploc bag, underneath the microwave stand, located in the living room. For the first thirty-five minutes of the conversation, Osborn denied being in the house; he claimed he was elsewhere and talking with the negotiator by cell phone. But at least one woman had left the house during the conversation, and she advised officers that Osborn was inside.[2] At one point, Osborn expressed frustration that police officers had surrounded his home. When asked why it mattered since he was not home, Osborn admitted that he was inside the house.

         Osborn eventually came out of the house, and when he did so, Sergeant Daniel Merrit of the Bomb and Arson Section asked Osborn if there were any explosives or booby traps inside the residence. Osborn stated, "I don't want anybody to get hurt. The only thing that could be explosives would be something in a teddy bear that a girl brought over."

         When investigators entered Osborn's home, they found a teddy bear on the north end of the garage, sitting on top of an I-beam. Next to the teddy bear was a Ziploc bag containing a substance that was later determined to be a nitrate explosive. On the packaging were the words, "Dyna Nobel, " an explosives manufacturer. And testimony at trial indicated that the particular kind of explosive found in the bag was typically used for bore blasting in construction projects, and it could not be obtained legally without a permit.

         After Osborn was taken into custody, he was read his Miranda[3] warnings, and he agreed to speak with Detective James Keller. Osborn indicated that, a couple of weeks earlier, he had been the target of a shooting in retaliation for information he had provided to the police. The shooting left Osborn in an extreme state of anxiety and nervousness, and it caused him to fear for his life. Osborn was looking for a form of protection, but decided against obtaining a firearm because he knew he could not legally possess one in light of his prior felony convictions. Osborn said that his live-in girlfriend Angela Guterri brought home some "C-4" less than two days after the shooting in response to Osborn's concerns. When she brought it home, Guterri warned Osborn to be careful with the substance, implying it to be dangerous. Osborn indicated that Guterri told him the substance could be detonated remotely with a cell phone and he could use it "to kill these guys." Osborn admitted to handling the substance on multiple occasions. Osborn also indicated that he believed the substance to be a real explosive.

         Osborn was charged with one count of unlawful possession of an explosive weapon. He had a preliminary hearing set for February 21, 2014, for which he failed to appear. A warrant was issued for his arrest, and he was subsequently indicted for both unlawful use of a weapon and felony failure to appear.

         Osborn initially reached a plea agreement with the State whereby he would plead guilty to failure to appear in exchange for the State's dismissal of the unlawful possession of an explosive weapon charge. During the plea hearing, however, after the State recited the factual basis for the plea, the court asked Osborn if what the State had indicated was true. Osborn stated that he did not purposely fail to appear; instead, he claimed that he overslept and inadvertently missed the preliminary hearing. In response, the court advised Osborn, "I cannot accept a plea of guilty to this particular charge." Osborn subsequently filed a written waiver of his right to a jury trial and asked to try the case before the court.

         At trial, Osborn testified in his own defense, advising the court that Guterri brought the substance into his home of her own volition; that he initially didn't believe it was an explosive; that he never intended to hurt anyone or create a weapon; and that he overslept the day of his preliminary hearing and immediately contacted his bondsman upon discovering his error. Osborn also presented testimony from his bondsman, who verified that Osborn called him the day of the preliminary hearing to report that he had not shown up for the hearing.

         The trial court found Osborn guilty of both offenses and sentenced him to consecutive terms of six and three years' imprisonment. Osborn appeals.


         Osborn brings six points on appeal. The first point claims plain error in the trial court's refusal to accept his guilty plea to failure to appear. The second through fourth points challenge the sufficiency of the evidence to support the unlawful possession of an explosive weapon conviction. The fifth point challenges the sufficiency of the evidence to support the failure to appear conviction. And the final point argues that the trial court plainly erred in finding Osborn competent to stand trial. For ease of discussion, we address Osborn's sixth point first.

         A. There was nothing presented during Osborn's criminal proceedings to suggest to the court that it should question Osborn's competence to proceed.

         In his sixth point, Osborn claims that the trial court "plainly erred in finding Osborn competent to stand trial, because Section 552.020 requires that the trial court order (upon its own motion) an evaluation of a criminal defendant when the trial court has reasonable cause to suspect that the defendant lacks mental fitness to proceed." Osborn argues that his competency was called into question by documents filed by his counsel with the court and by counsel's arguments at sentencing. We disagree.

         Because Osborn raised no argument below regarding his competence, his claim is not preserved. Accordingly, he asks for plain error review. Rule 30.20.[4] "Rule 30.20 authorizes this [c]ourt to review, in its discretion, 'plain errors affecting substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.'" State v. Flores, 437 S.W.3d 779, 789 (Mo. App. W.D. 2014) (quoting Rule 30.20).

         "It is well established that the Due Process Clause of the Fourteenth Amendment prohibits the prosecution of a defendant who is not competent to stand trial." State v. Anderson, 79 S.W.3d 420, 432 (Mo. banc 2002); see also § 552.020.1 ("No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures."). "A defendant is competent when he 'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.'" Anderson, 79 S.W.3d at 432 (quoting State v. Johns, 34 S.W.3d 93, 104 (Mo. banc 2000)). "In Missouri a defendant is presumed competent, and has the burden of proving incompetence by a preponderance of the evidence." Id. at 432-33 (citing § 552.020.8).

         "Whenever any judge has reasonable cause to believe that the accused lacks mental fitness to proceed, he shall . . . appoint one or more private psychiatrists or psychologists . . . to examine the accused . . . ." § 552.020.2. But, "[a]bsent some suggestion of mental instability, [there is] no duty to initiate an investigation of the accused's mental condition." State v. Richardson, 923 S.W.2d 301, 328 (Mo. banc 1996). "The need for an investigation is not indicated where the accused has the present ability to consult rationally with counsel and to understand the proceedings." Id. "An appellate court should determine 'whether a reasonable judge, in the same situation as the trial court, should have experienced doubt about the accused's competency to stand trial.'" State v. Tokar, 918 S.W.2d 753, 762-63 (Mo. banc 1996) (quoting Branscomb v. Norris, 47 F.3d 258, 261 (8th Cir. 1995)). But "one cannot fault a trial court judge for failing to determine a question that he/she has no reason to believe is in issue." Id. at 763 (quoting Davis v. Alabama, 545 F.2d 460, 464 (5th Cir. 1977)).

         Here, in support of his claim that the court had reasonable cause to believe Osborn lacked mental fitness to proceed and thus had a duty to act sua sponte to question Osborn's competence, Osborn relies on a psychological examination and arguments of trial counsel at sentencing, made in pursuit of lenience.

         Before sentencing, Osborn filed a "Motion for Admission of Psychological Examination Documentation, " to which he attached an exhibit purporting to contain "documents relating to a psychological examination conducted by Dr. William Breckenridge, Psy.D. on June 23, 2014." Osborn's motion, however, was never ruled upon, and he made no effort at the sentencing hearing to offer the exhibit for admission. Thus, it is unclear whether the trial court ever viewed this document. In any event, the documentation appears to relate to Osborn's application for disability income. Though it suggests the presence of some mental illness, "[t]he suspicion or actual presence of some degree of mental illness or need for psychiatric treatment does not equate with incompetency to stand trial." Baird v. State, 906 S.W.2d 746, 749 (Mo. App. W.D. 1995). Osborn directs us to nothing within the document itself that would cause a court to reasonably question Osborn's competence to stand trial.

         Osborn further relies on arguments made by counsel in support of lenience at sentencing. "[U]nsworn remarks of counsel in opening statements, during the course of trials[, ] or in arguments are not evidence of the facts asserted." State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006) (quoting State ex rel. Horn v. Randall, 275 S.W.2d 758, 763 (Mo. App. 1955)). Accordingly, the trial court was not required to believe the assertions made in counsel's argument. This is especially true in light of the fact that the concerns counsel expressed during arguments were apparently insufficient to cause even counsel, himself, to question Osborn's competence to proceed with sentencing in light of the fact that counsel never requested a mental evaluation.

         In short, we see nothing in the record indicating that the trial court had reason to question Osborn's competence.

         Point VI is denied.

         B. The trial court did not plainly err in refusing to accept Osborn's guilty plea.

         In his first point on appeal, Osborn argues that the court plainly erred in refusing to accept his guilty plea to failure to appear based on his representation to the ...

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