Case Number: WD80188

Judge: Cynthia L. Martin

Court: MISSOURI COURT OF APPEALS WESTERN DISTRICT

Plaintiff's Attorney: Robert J. Bartholomew, Jr.

Defendant's Attorney: Ellen Flottman
District Defender at Missouri State Public Defender

Description: In April 2015, Miller approached James Meyers ("Meyers"), proposing that Meyers
trade his 1972 Chevrolet Nova valued at approximately $6,000 for a motorcycle in Miller's
possession. Meyers met Miller to inspect the motorcycle, which was a Suzuki Intruder that
had been converted into a chopper. The two men agreed on a trade. Miller took possession
of the Nova, and Meyers took possession of the motorcycle. Meyers gave Miller the Nova's
title, and Miller gave Meyers an envelope containing the motorcycle's title. The
motorcycle's title was an "open" title, as it did not have Miller's name on it. Instead, the
title indicated that Jeffrey Beckham ("Beckham") was the motorcycle's owner.
Approximately a week after the two men traded vehicles, Meyers attempted to
locate the motorcycle's VIN to check that it matched the VIN on the title. When Meyers
was unable to find a VIN on the motorcycle, he contacted Miller. Miller told Meyers that
the motorcycle's VIN was located underneath the seat at the bottom on the motorcycle's
frame. Meyers looked where Miller said the VIN would be but did not find one. Then
Miller searched in the same place and also could not locate the motorcycle's VIN. Miller
offered to stamp a VIN on the motorcycle, and Meyers declined the offer. At that point,
Miller told Meyers that he was going to have Meyers arrested for stealing the motorcycle
from him.
Meyers took the motorcycle to Vintage Cycle and Auto Repair, a business in
Bethany owned by Danny Spurling ("Spurling"), to have work done on the motorcycle.

1"On appeal from a jury-tried case, we view the facts in the light most favorable to the jury's verdict." State v. Rice, 504 S.W.3d 198, 200 n.3 (Mo. App. W.D. 2016).
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Spurling was also unable to locate a VIN on the motorcycle. One or two days after Meyers
took the motorcycle to Vintage Cycle and Auto Repair, Miller went to the shop and asked
Spurling to do additional work on the motorcycle. Spurling told Miller that since Meyers
was the owner of the motorcycle, only Meyers could authorize repairs. Miller informed
Spurling that the trade "wasn't going to go through so he actually owned the machine."
Because Spurling was uncertain as to the ownership of the motorcycle, he refused to work
on it and asked Meyers to remove it from the shop.
Meyers contacted Harrison County Sheriff Josh Eckerson ("Sheriff Eckerson")
about the motorcycle. Meyers told Sheriff Eckerson that the motorcycle had no visible
VIN and that he had received an "open title" from Miller. Sheriff Eckerson inspected the
motorcycle and could not find a VIN, but Sheriff Eckerson located a number on the motor
that indicated that it belonged to a 1996 Suzuki. Sheriff Eckerson testified that he inspected
the title that Miller had given Meyers. That title had a VIN. Sheriff Eckerson checked that
VIN in the Missouri State Highway Patrol MULES system to find whether the VIN was
registered to Beckham or otherwise. Any vehicle that has been issued a Missouri certificate
of title would be in the MULES system. Sheriff Eckerson's search yielded no results.
Sheriff Eckerson testified that he believed two motorcycles had been used to make one
custom vehicle, which was the motorcycle that Miller traded Meyers for the Nova.
Sheriff Eckerson contacted Jeffrey Ellis ("Ellis"), a motor vehicle inspector for the
Missouri State Highway Patrol. Ellis examined the motorcycle and could not find a VIN.
Ellis testified that there a method by which a homemade vehicle may obtain a valid VIN
from the Highway Patrol. First, a person must purchase a form from the Department of
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Revenue. Then, the person must request an inspection from the Highway Patrol. During
that inspection, the person must provide receipts for any used parts from donor vehicles
and the VIN numbers of the donor vehicles. After inspecting the receipts and the
homemade vehicle, the motor vehicle inspector will assign the vehicle a VIN and affix a
metal plate with that VIN to the vehicle. Ellis testified that, without receipts and titles to
the donor vehicles, Meyers would not be able to obtain a VIN for the motorcycle in
question, and that Meyers would not be able to obtain a title for the motorcycle without a
VIN. Ellis further testified that a VIN stamped on the vehicle without the metal plate
attached by a motor vehicle inspector for the Highway Patrol would not be valid.
The State charged Miller as a prior offender with one count of possession or sale of
equipment with altered identification numbers in violation of section 301.390.2 Miller
represented himself throughout the proceedings. Prior to trial, Miller requested copies of
text messages that he exchanged with Meyers from the State. The State informed the trial
court that it had given Miller "everything [it] had." The State told the trial court that the
text messages that Miller sought were on a phone that no longer existed and that no text
messages had been provided to the prosecution. Miller argued to the trial court that Sheriff
Eckerson had seen text messages that Miller and Meyers had exchanged, but the State told
the trial court that it had never seen such text messages. Further, the State argued that, if
Miller had copies of the text messages, he should not be permitted to use them at trial
because they were never disclosed to the State.

2Unless otherwise noted, all statutory references are to the version in effect in April 2015 when the crime was committed.
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During argument on a motion to dismiss filed by Miller, the trial court heard
testimony from Sheriff Eckerson. Sheriff Eckerson testified that, during the course of his
investigation, Meyers had shown him text messages that he had exchanged with Miller.
Sheriff Eckerson testified that there was only one text message regarding the motorcycle
and testified that, in that text message, Miller told Meyers he was going to report the
motorcycle as stolen. Sheriff Eckerson did not initially collect the text messages, and when
he attempted to collect the text messages after Miller requested them from the State, he
was unable to do so because Meyers's phone had been damaged. The trial court denied
Miller's motion to dismiss.
Meyers testified during trial. When Miller was cross-examining Meyers, he asked
a question about the text messages. The State objected and argued that Miller should not
be able to ask about the contents of the text messages because those text messages were
never disclosed to the State by Miller. The trial court sustained the objection, allowing
Miller to inquire as to the existence of text messages but disallowing Miller to ask about
the content of those text messages. The trial court explained that the text messages
"should've been disclosed to the State." Miller also attempted to use the text messages
when he cross-examined Sheriff Eckerson. The State objected, and the trial court told
Miller he could ask about the existence of the text messages but not the content thereof.
On April 26, 2016, the jury found Miller guilty of possession or sale of equipment
with altered identification numbers, a class D felony. The trial court ordered a sentencing
assessment report, increased bond for Miller from $350 to $15,000 cash, and ordered Miller
to appear for sentencing on May 19, 2016. Miller posted bond on May 11, 2016. Miller
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failed to appear on May 19, 2016, and the trial court revoked Miller's bond and issued a
capias warrant due to Miller's failure to appear. The warrant was served on October 2,
2016, while Miller was in Colorado. Miller was then transported from Colorado to
Harrison County, and Miller appeared for sentencing on October 20, 2016, over five
months after the date his sentencing had been originally scheduled. The trial court entered
a judgment convicting Miller of possession or sale of equipment with altered identification
numbers and sentencing Miller four years imprisonment.
Miller appeals.
Analysis
Miller raises two points on appeal. First, he asserts that there was insufficient
evidence that Miller knowingly committed the offense of possession or sale of equipment
with altered identification numbers so that trial court erred in failing to grant judgment of
acquittal sua sponte at the close of all the evidence. Second, Miller argues that the trial
court plainly erred in refusing to allow him to present evidence of the text messages he
exchanged with Meyers.
The State argues that Miller's appeal should be dismissed pursuant to application of
the escape rule. We agree.
"'The escape rule is a judicially-created doctrine that operates to deny the right of
appeal to a criminal defendant who escapes justice.'" State v. Carter, 523 S.W.3d 590, 597
(Mo. App. W.D. 2017) (quoting State ex rel. Koster v. Oxenhandler, 491 S.W.3d 576, 604
(Mo. App. W.D. 2016)). The escape rule authorizes the appellate court to dismiss an
appellant's appeal if the appellant absconds following a conviction. Id. "'The decision to
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apply the escape rule rests within the sound discretion of the appellate court.'" Id. (quoting
State v. Thomas, 466 S.W.3d 44, 47 (Mo. App. W.D. 2015)). In determining whether to
apply the escape rule to dismiss the appellant's appeal, our central inquiry is whether the
appellant's escape adversely affected the criminal justice system. Id. If so, application of
the escape rule and dismissal of appellant's appeal is appropriate. Id.
Missouri courts have set forth several reasons to justify the application of the escape
rules. Id. Those reasons include:
(1) the need for a court to have control over the defendant before making a decision on appeal; (2) curtailment of administrative problems caused by the escapee's absence; (3) preventing prejudice to the State in the event of a remand for a new trial; (4) preventing defendants from selectively abiding by court decisions; (5) discouraging escape; (6) encouraging voluntary surrender; (7) preserving respect for the criminal justice system; and (8) promoting dignified operation of the appellate courts.
Id.
Miller acknowledges that Missouri courts have held that the failure to appear for
sentencing gives the appellate court discretion to apply the escape rule to dismiss the
appeal. However, Miller argues that we should adopt the reasoning set forth in Ortega
Rodriguez v. United States, 507 U.S. 234 (1993), and conclude that because he fled before
sentencing and was recaptured before appeal, the trial court was well situated to respond
to Miller's flight via sentencing him to the maximum possible sentence for a class D felony.
See section 558.011.1(4) (setting the maximum term of imprisonment for a class D felony
at four years).
In Ortega-Rodriguez, the Supreme Court considered "whether a defendant may be
deemed to forfeit his right to appeal by fleeing while his case is pending in the district
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court, though he is recaptured before sentencing and appeal." 507 U.S. at 235-36. The
Court recognized that the federal courts have long held that appellate courts may dismiss
"the appeal of a defendant who is a fugitive from justice during the pendency of his
appeal." Id. at 239 (emphasis added). The Court observed that "the justifications . . . for
allowing appellate courts to dismiss pending fugitive appeals all assume some connection
between a defendant's fugitive status and the appellate process, sufficient to make an
appellate sanction a reasonable response." Id. at 244. "These justifications are necessarily
attenuated when applied to a case in which both flight and recapture occur while the case
is pending before the district court, so that a defendant's fugitive status at no time coincides
with his appeal." Id. The Court explained that a defendant fleeing while his case is pending
in the district court presents no risk of unenforceability of the appellate court's decision
because the defendant will have already been returned to custody before he invokes the
appellate process; does not affect the "efficient operation" of the appellate court because
any delay will have occurred before the case is filed in the appellate court; and does not
operate to "protect the dignity" of the appellate court because the defendant has flouted the
authority of the district court, which has the authority to defend its own dignity. Id. at 244
446. Thus, the Court held that "while dismissal of an appeal pending while the defendant
is a fugitive may serve substantial interests, the same interests do not support a rule of
dismissal for all appeals filed by former fugitives, returned to custody before invocation of
the appellate system. Id. at 249.
In State v. Troupe, 891 S.W.2d 808, 810 (Mo. banc 1995), our Supreme Court
rejected the suggestion to apply the reasoning of Ortega-Rodriguez to cases in Missouri in
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which a criminal defendant escapes and is recaptured prior to initiating an appeal.
"Although application of the escape rule clearly requires a relationship between the escape
and prejudice to the criminal justice system, this Court does not agree that the rule may be
applied by an appellate court only when the appellate process itself is substantially
prejudiced." Id. Instead, our Supreme Court directed that the relevant question in
determining whether to apply the escape rule is whether the defendant's escape adversely
affects the criminal justice system. Id. at 811. In Troupe, the defendant was at large for
more than eight months. Id. at 810. The Court applied the escape rule, explaining:
It strains credulity to postulate that such a delay does not have an adverse impact on the criminal justice system and the state's case. If appellant were successful on the merits of an appeal, the cause might be remanded for a new trial. In that event, the state could be prejudiced by lost or destroyed evidence and witnesses who are no longer available. Further, over time, witnesses' memories fade, subjecting them to impeachment and consequent diminished credibility.
Id. at 810-11. The court dismissed the appeal. Id. at 812.
"Missouri appellate courts are constitutionally bound to follow the last controlling
decision of Missouri's Supreme Court, regardless of how many years have passed since
that decision as rendered." State v. Naylor, 505 S.W.3d 290, 298 (Mo. App. W.D. 2016).
Thus, we decline Miller's invitation to disturb the holding of Troupe. Instead, we consider
whether Miller's flight from the jurisdiction and subsequent failure to appear to sentencing
adversely affected the criminal justice system.
Miller's flight caused administrative difficulties and adverse effects to the criminal
justice system. When Miller failed to appear to sentencing on May 19, 2016, the trial court
revoked Miller's bond and issued a capias warrant, which was served on October 2, 2016.
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Miller's flight required that he be transported from Colorado to Harrison County to be
sentenced at public expense. Because of his escape, Miller was not sentenced until
October 20, 2016, over five months after sentencing was originally scheduled.
By escaping justice for over five months, Miller demonstrated disregard of the law
and disrespect for the court and the criminal justice system. Thomas, 466 S.W.3d at 47.
Invoking the escape rule to dismiss Miller's appeal in this case will further the goals of
discouraging escape and encouraging voluntary surrender. By increasing Miller's bond to
$15,000 cash after trial, the trial court anticipated that Miller would voluntarily surrender
to the justice system on the date of sentencing. "Those who seek the protection of our legal
system must be willing to comply with its rules and decisions." Id. Miller failed to do so.
This case warrants the exercise of our discretion to dismiss Miller's appeal.

Outcome: We dismiss Miller's appeal.

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Defendant's Experts:

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