STATE OF MISSOURI v. GARRY L. FILBECK
2016 Mo. App. LEXIS 1177
Mo. Ct. App.2016Background
- Filbeck was convicted at a bench trial of two counts of felony stealing for aiding and abetting Howard Perryman in theft of six cattle from Danny Vaughn on Feb. 12, 2012.
- The State charged felony theft under § 570.030.3(3)(j) because stolen livestock elevation makes the offense a class C felony.
- This court affirmed the convictions under Rule 30.25(b); the Missouri Supreme Court then transferred and retransferred the case for reconsideration in light of State v. Bazell.
- The trial evidence showed Filbeck participated in a long‑running cattle‑rustling enterprise with Perryman: he kept stolen cattle, allowed ear‑tag removal in his barn, and worked with Perryman for years; defense counsel conceded Filbeck’s involvement.
- On retransfer, the State conceded Bazell requires vacating felony enhancements tied to enumerated property types (like livestock); the court agreed and remanded for misdemeanor resentencing.
- Filbeck’s additional claims (statute‑of‑limitations dismissal and insufficient evidence/double jeopardy) were rejected: limitations defense was waived for not being raised at trial; evidence supported aiding/abetting liability; double jeopardy argument was rejected post‑Heslop.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 570.030.3(3)(j) elevates stealing livestock to felony | State: felony enhancement applies to theft of livestock, supporting class C felony convictions | Filbeck: Bazell means enhancement doesn't apply to stealing; convictions should be reduced | Court: Agrees with Bazell; vacates felony convictions and remands for class A misdemeanor sentencing |
| Whether statute of limitations bars misdemeanor resentencing | State: limitations not raised timely; charges were properly filed | Filbeck: misdemeanors carry one‑year limitations so counts should be dismissed with prejudice | Court: Waived—Filbeck failed to raise the defense at trial; not entitled to dismissal |
| Whether evidence suffices for aiding/abetting | State: evidence shows Filbeck's long‑term participation in theft enterprise, supporting liability | Filbeck: no proof he aided/encouraged Perryman in the Vaughn theft specifically | Court: Evidence sufficient; co‑conspiratorial/collective course of criminal conduct makes him liable for foreseeable crimes |
| Whether double jeopardy requires single‑larceny rule | Filbeck: single‑larceny rule should apply to misdemeanors or here | State: Heslop rejects single‑larceny rule; multiple thefts can be separate offenses | Court: Double jeopardy claim rejected; Heslop controls and legislature did not resurrect single‑larceny rule |
Key Cases Cited
- State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016) (statutory enhancement for enumerated property types does not apply to elevating the theft offense)
- State v. Heslop, 842 S.W.2d 72 (Mo. banc 1992) (rejecting the old single‑larceny rule)
- State v. Johnson, 456 S.W.3d 521 (Mo. Ct. App. 2015) (participant in criminal course is liable for crimes reasonably foreseeable as part of that course)
- State v. Whittemore, 276 S.W.3d 404 (Mo. Ct. App. 2009) (no requirement of specific knowledge of which particular crimes a co‑participant will commit)
- State v. Cotton, 295 S.W.3d 487 (Mo. Ct. App. 2009) (issue not raised at trial is waived on appeal)