Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Clay County, Missouri The Honorable
Larry D. Harman, Judge
Karen King Mitchell, Presiding Judge, and Cynthia L. Martin
and Gary D. Witt, Judges.
KING MITCHELL, PRESIDING JUDGE.
Osborn appeals, following a bench trial, his convictions of
unlawful possession of an explosive weapon, § 571.020,
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
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.
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. 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.
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."
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
Osborn was taken into custody, he was read his
Miranda 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.
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
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.
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.
trial court found Osborn guilty of both offenses and
sentenced him to consecutive terms of six and three
years' imprisonment. Osborn appeals.
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.
There was nothing presented during Osborn's criminal
proceedings to suggest to the court that it should question
Osborn's competence to proceed.
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.
Osborn raised no argument below regarding his competence, his
claim is not preserved. Accordingly, he asks for plain error
review. Rule 30.20. "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).
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 §
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)).
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.
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.
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.
short, we see nothing in the record indicating that the trial
court had reason to question Osborn's competence.
VI is denied.
The trial court did not plainly err in refusing to accept
Osborn's guilty plea.
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 ...