Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Michael O.
Scott Kowalski ("Defendant") was convicted of one
count of the class-D felony of unlawful merchandising
practices (see section 407.020) ("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.
merit only in Defendant's second point, we reverse his
conviction on Count 1 and affirm the judgment in all other
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
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
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
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
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.
1 - Forfeiture of Right to Self-Representation
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[.]"
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 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.
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).
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.
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
Johnson, the defendant was held to have forfeited
his right to self-representation by incessantly impugning his
lawyers, ranting to the court, using 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.
the trial court revoked Defendant's right to represent
himself after Defendant ...