STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD33951
)
GARRY L. FILBECK, ) FILED: November 17, 2016
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY
Honorable Alan M. Blankenship, Judge
REVERSED AND REMANDED WITH DIRECTIONS
(Before Scott, P.J., Bates, J. and Sheffield, J.)
PER CURIAM. Garry Filbeck appeals his bench-tried convictions on two
counts of felony stealing. The state’s theory was that Filbeck aided and abetted
Howard Perryman’s theft of six cattle from Danny Vaughn on February 12, 2012, and
that the thefts were felonies per § 570.030.3(3)(j), 1 which provided that “any offense
in which the value of property or services is an element is a class C felony if … [t]he
property appropriated consists of … [a]ny animal considered livestock ….”
1Statutory citations are to RSMo 2000 as amended through 2012. Rule references are to
Missouri Court Rules (2016).
This court affirmed Filbeck’s convictions pursuant to Rule 30.25(b) on April 6,
2016. On October 6, 2016, our supreme court took transfer and retransferred the
case to this court to reconsider in light of State v. Bazell, 497 S.W.3d 263 (Mo.
banc August 23, 2016).
We invited the parties to file further suggestions. In response, the State opines
that Bazell entitles Filbeck “to a remand to be resentenced to class A misdemeanors
for his two counts of stealing” because
Under Bazell, the sentencing enhancement for the enumerated
list of types of property set out in § 570.030.3(3) does not apply to
the crime of stealing those types of property. Id. [Filbeck] was
similarly charged with an enhancement under § 570.030.3(3). The
enhancement provision for livestock relied on in this case,
§ 570.030.3(3)(j), is not in any meaningful way distinguishable from
the enhancement provision for firearms relied on in Bazell.
We agree. See State v. McMillian, No. WD 79440, slip op. at 5 (Mo.App.
Oct. 18, 2016) (“Bazell made no distinction between the various ways the
enhancement provision could be triggered…. The specific character of the
enhancement sought under section 570.030.3 is irrelevant ….”).
Although we must reverse and remand for resentencing per Bazell, Filbeck’s
arguments for further relief fail.
Limitations Defense Waived
On retransfer, Filbeck argues from McMillian, slip op. at 6, that his charges
should be dismissed with prejudice because they were not filed within the one-year
statute of limitations for misdemeanors (§ 556.036.2). Because Filbeck did not raise
this defense in the trial court (contrast McMillian, slip op. at 2-3), he has waived
any such complaint. State v. Cotton, 295 S.W.3d 487, 488-92 (Mo.App. 2009).
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Proof Sufficient
There is no real issue as to Perryman’s longtime, extensive stealing network;
Filbeck’s participation for years prior to the Vaughn theft; or that Filbeck committed
crimes here as Filbeck’s counsel effectively conceded in the trial court:
Mr. Perryman had a network. I don’t dispute that at all. I think all
the reports from Sergeant (sic) Bracker very clearly support that. Mr.
Perryman was all over creation 24 hour a day stealing stuff, but he
was put it everywhere, and Mr. Filbeck got caught. And, for that, Mr.
Filbeck is going to come out of this with five felony convictions [three
in Webster County, two on appeal here] ….
and
Had he [Filbeck] been charged with possession of stolen cattle, he
would have pled guilty, just like we did in Webster County.
Possession of stolen cattle is the appropriate charge in this case.
Despite his involvement with Perryman’s theft network generally, Filbeck
claims the State did not show that Filbeck aided and encouraged Perryman before or
during this Vaughn cattle theft. A sufficient reply is that one “who embarks upon a
criminal course of conduct with another is responsible for crimes he could reasonably
anticipate would be part of the conduct.” State v. Johnson, 456 S.W.3d 521, 526
(Mo.App. 2015); see also State v. Whittemore, 276 S.W.3d 404, 407 (Mo.App.
2009). “The evidence need not establish a defendant’s specific knowledge of which
particular crime his co-participant will commit.” Whittemore, 276 S.W.3d at 407.
The trial court could fairly conclude from the evidence that Filbeck willingly
participated in a cattle-rustling enterprise that victimized many, eventually including
Danny Vaughn; that Filbeck knew Perryman was a cattle thief and knew Perryman’s
modus operandi; that they worked together for years prior to the Vaughn theft; that
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Perryman had no land of his own, and thus depended on Filbeck to keep, feed, and
care for stolen cattle until they could be sold without arousing suspicion; 2 that with
Filbeck’s permission, Perryman for years used Filbeck’s barn as a place to remove
identifying ear tags, placed stolen cattle with Filbeck’s herd, and retrieved stolen
cattle to sell at a later date; and that Perryman had the lock and only key to one of
Filbeck’s leased properties. It is telling, as well, that Filbeck initially lied or was not
forthcoming with investigators, not only about the presence of stolen cattle on his
property, but also about his relationship with Perryman.
We deny Filbeck’s claims of insufficient evidence to support the convictions.
No Double Jeopardy
Filbeck’s double jeopardy complaint, as first posed, essentially called for a
return to the old single-larceny rule (i.e., stealing several items from the same owner
at the same time and place is only a single crime) that our supreme court nullified in
State v. Heslop, 842 S.W.2d 72, 75 (Mo. banc 1992). He adjusts his theory on
retransfer, urging that the legislature meant for a single-larceny rule to govern
misdemeanors notwithstanding Heslop. We find neither assertion persuasive and
thus reject both.
Conclusion
We reverse the judgment of felony conviction and remand for the circuit court
to enter judgment of conviction and sentences on two counts of class A misdemeanor
stealing.
2 Given the scope of Perryman’s enterprise, the trial court expressed doubt that all thefts were
funneled through Filbeck or that he was the lone accomplice. Nonetheless, the court stated that
the evidence “certainly demonstrated” Filbeck’s participation.
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