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State v. Garcia

Court of Appeals of Missouri, Western District, Second Division

September 24, 2019

STATE OF MISSOURI, Respondent,
v.
GILBERT GARCIA, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF LIVINGSTON COUNTY The Honorable Thomas N. Chapman, Judge

          Before Lisa White Hardwick, Presiding Judge, Thomas H. Newton and Mark D. Pfeiffer, Judges.

          LISA WHITE HARDWICK, JUDGE

         Gilbert Garcia appeals from his conviction for receiving stolen property. He contends the evidence was insufficient to support the conviction, the verdict director erroneously allowed a non-unanimous verdict, and the evidence was insufficient to support the restitution order. For reasons explained herein, we affirm Garcia's conviction but modify the judgment to order restitution in the amount of $5, 347.25.[1]

         Factual and Procedural History

         On September 22, 2016, Joseph Marshall ("Marshall") and his wife, Shawna Marshall, (collectively, "the Marshalls") entered into a contract for deed with Garcia on a home in Chillicothe that the Marshalls had owned for approximately seventeen years. The contract provided that Garcia would pay the sale price of $15, 000, plus interest, taxes, and insurance in monthly installments over five years. Included in the contract was a provision that called for Marshall to provide up to $5, 000 to Garcia "for materials to be used at the property, " with Garcia providing all labor on the property. The contract provided that Garcia could purchase the materials at Lowe's Home Improvement ("Lowe's") by calling Marshall "with a list of material[s] at the commercial account check out." The amount set aside for materials was a negotiated amount that was factored into the total contract price. The Marshalls allowed Garcia to move into the house with no money down. Marshall also added Garcia as an authorized user on his Lowe's charge account to purchase the $5, 000 in materials.

         The day after the contract was signed, Garcia began making purchases at Lowe's on Marshall's account without calling Marshall. Marshall's October 2, 2016 statement for his Lowe's charge account indicated that Garcia made $1, 137.95 in purchases purportedly for the property from September 23 to September 28, 2016. The invoice showed, however, that some of these purchases were for items such as food, drinks, children's toys, tools, and batteries, which Marshall did not believe met the contract's requirement that the purchases be materials for the property. Marshall removed Garcia's authorization to charge on his Lowe's account. Marshall then spoke to Garcia. Garcia apologized and told Marshall that he just "needed those things." Marshall told Garcia that the purchases made under the contract had to be for building materials. After this conversation, Marshall reauthorized Garcia to make purchases on his Lowe's account because he believed that Garcia understood that the purchases had to be for "materials only on that house, just like the contract says."

         When Marshall received his November 2, 2016 statement from Lowe's, he saw that Garcia had made an additional $10, 205.91 in purchases purportedly for the property from October 4 to October 31, 2016. These purchases included food, drinks, restaurant gift cards, children's toys, and tools. After he received this statement, Marshall canceled Garcia's authorization to charge on his account at Lowe's. Marshall asked Garcia to bring the property that he had purchased from Lowe's to him. Although Garcia said that he would do so, he did not.

         Marshall contacted the police on November 30, 2016. The police investigation found that Garcia had pawned for cash some of the items he purchased on Marshall's Lowe's account. Specifically, the investigation showed that, on September 28, 2016, just six days after the contract was signed, Garcia purchased a power lithium tool set for $122.92 and another large tool set for $122.55 on Marshall's Lowe's account and pawned them the next day at a Chillicothe pawn shop for $80 total. Additionally, Garcia purchased a power wormdrive saw for $189.05 and an air compressor for $189.05 on Marshall's Lowe's account on October 7, 2016, and pawned them that same day for $60 and $90, respectively.

         Marshall never recovered any of the property that Garcia had purchased on the Lowe's account. Moreover, although Garcia had purchased a new stove, refrigerator, and microwave on Marshall's account, those appliances were never installed in the house. Instead, Garcia had installed "old junkie" appliances. The only purchases of Garcia's on Marshall's Lowe's account that were actually in the house were some cabinets and doors that were so poorly installed that they were ruined. A police officer who inspected the property testified that the house was "trashed." Marshall was responsible for paying the charges for the purchases that Garcia made on the Lowe's account, and Garcia never repaid Marshall.

         The State charged Garcia as a prior offender with one count of the class C felony of receiving stolen property with a value of at least $500. A jury trial was held. The jury found Garcia guilty. The court sentenced him to five years in prison, subject to a 120-day callback, and ordered him to pay $6, 407.22 in restitution. Garcia appeals.

         Analysis

         In Points I and II, Garcia contests the sufficiency of the evidence to support his conviction for receiving stolen property. Our review of a challenge to the sufficiency of the evidence to support a conviction is "limited to determining whether there was sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt." State v. Naylor, 510 S.W.3d 855, 859 (Mo. banc 2017) (citation omitted). "This is not an assessment of whether this [c]ourt believes that the evidence at trial established guilt beyond a reasonable doubt but rather a question of whether, in light of the evidence most favorable to the State, any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt." Id. (citation omitted). We do not reweigh the evidence but, instead, accept as true all evidence and inferences supporting guilt and ignore all contrary evidence and inferences. Id. at 858-59. We recognize that the jury "may believe all, some, or none of the testimony of a witness when considered with the facts, circumstances and other testimony in the case." State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (citation omitted).

         Section 570.080.1, RSMo Supp. 2014, [2] provides that "[a] person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he or she receives, retains, or disposes of property of another knowing that it has been stolen, or believing that it has been stolen." "'Receiving' means acquiring possession, control or title or lending on the security of the property." § 570.010(13). "'Deprive' means, in pertinent part, "[t]o withhold property from the owner permanently" or "[t]o use or dispose of property in a manner that makes recovery of the property by the owner unlikely." § 570.010(8).

         The State charged that Garcia committed the class C felony of receiving stolen property in that "on or about November 30, 2016, . . . the defendant with the purpose to deprive the owner of $6, 407.22 of miscellaneous items, retained such property knowing that it had been stolen and the property appropriated was of the value of at least" $500. The State's theory was that the property Garcia purchased in excess of the contract's $5, 000 limit was stolen property, and when he refused ...


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