 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
JEFFREY WEINHAUS, ) ED103834
' )
Appellant, ) Appeal from the Circuit Court
) of Frankiiii County
v. ) lSAB-CCOOl 17
)
STATE O,F MISSOURI, ) ilonorabie Keith M. Sutherland
)
Respondent. ) Filed: October 18, 2016

Introcluction
Jeffrey Weinhaus (Movant) appeals the motion court’S denial of his motion for
post-conviction relief under Ruie 29.15.l He argues the motion court clearly erred in
denying his motion Without an evidentiary hearing because he pled unrefuted facts showing
that his trial counsel Was ineffective for failing to call certain Witnesses at trial. We affirm.
_Bac_l_<sLQLKi
In 2013, a jury convicted Movant of felony possession of a controlled substance,
misdemeanor possession of 35 grams or less of marijuana, first-degree assault of a law
enforcement officer, and armed criminal acticn. In the light most favorable to the verdict,

the evidence at trial, as relevant to this appeal, Was the following2

 

1 All rule references are to Missoui‘i Rules of Crimina[ Procedure (2015), unless otherwise indicatedl
2 Dickerson v. State, 269 S.W.?>d 889, 890 (Mo. banc 2008).

 

On August 18, 2012, Missouri State Highway Patrol Sergeant Jatnes Folsom
(Sergeant Folsom) received a phone call from Missouri Circuit Court Jndge Kelly Parker
regarding a video Movant had posted online, in which Movant had threatened judicial
officers, including Judge Parker. Sergeant Folsom reviewed the video. In it, Movant stated
that “the People” will “fn'e” various Missouri officials including the State Courts
Administrator, as well as various circuit judges, lawyers, and policemen Movant also
generally referenced corrupt officials and “[his] right to blast you motherf[. . .]ers out of

55

there if we have to. Movant also stated “we have the right to remove you use [sic] of
force.” Movant stated that “Septeinber 14 will be the last day of the Defacto Court. You
all [are] fired and will be considered trespassers after that time.”

Sergeant Foisom also met with Cra\vford County officials Sergeant Folsom
discovered that the 911 dispatch center and the courthouse had increased their security
because Movant had come to both places and “had put everyone on edge.” Sergeant
Folsom consulted with other law enforcement officials, and they decided Sergeant Folsom
should visit Movant in order to determine whether he actually intended to harm anyone.

On Augnst 22, 2012, Sergeant Folsom and Corporal Scott Mertens (Corporal
Mertens) went to Movant’s home in Franklin County, Missouri. When Movant Stepped
outside his residence to speak with the State Troopers, they detected a strong odor of
marijuana After discussing the videos with Movant, the State Troopers asked Movant
whether there was marijuana in the house. Movant replied that there was not. Sergeant
Foisom and Corporal l\/Iertens detained l\/iovant until other State 'froopers arrived, and

Sergeant Folsom obtained a search warrant to search the house. During the search of

Movant’s basement, State Troopers seized drug paraphernalia, scales, a plastic container

 

holding marijuana, a bag containing marijuana, and a small tin containing pills that were
later identified as morphine. They also seized computer equipment and video cameras.
They found a gun in the nightstand of a dresser in the master bedroom of the home, but it
was properly registered to Movant’s wife and was not evidence of any crime, so they did
not seize it. After the search, Sergeant Folsom gave Movant an inventory of the items they
had seized as weil as Sergeant Folsom’s business card.

Shortly thereafter, Movant began sending emails to Sergeant Folsom asking for the
name of Sergeant Folsom’s attorney. Movant also filed a writ of replevin requesting his
computers back. Movant called Sergeant Folsom’s supervisors complaining that Sergeant
Folsom had stolen Movant’s computer, and l\/iovant also posted a video oniine in which he
said he “should have placed a bullet in [Sergeant Folsom’s] head.” Movant also posted a
video stating he was at his home with his guns loaded.

In the meantime, Sergeant Folsom had met with his snpervisors, and they had
decided that they were going to arrest Movant for possession of drugs and judiciai
tampering Sergeant Folsom contacted i\/lovant and arranged to meet in a public place.
Sergeant Folsom did not want to go to Movant’s home, due to what Movant had said in the
videos, and Sergeant Folsom was pleased to hear Movant make the initial suggestion to
meet in a public place. Sergeant Folsom told Movant this meeting was for the purpose of
returning l\/lovant’s computer equipment, but Sergeant Folsom planned to arrest Movant
when they met. Sergeant Folsom also sought to have other law enforcement officials
accompany him and Corporal Mertens when they met Movant. Sergeant Folsom contacted

the Franklin County Sheriff` s Department to assist in serving the arrest warrant, but no one

 

was available Sergeant Folsoin then contacted two FBI agents they had worked with, who
agreed to go.

The State Troopers and federal agents were all at the gas station where they had
agreed to meet Movant before Movant arrived. Sergeant Folsom and Corporal Mertens
parked in a visible area near the road so they could see Movant arrive, and the FBI agents
were in plain clothes and were on the other side of the gas station. Movant pulled into the
gas station at a high rate of speed and was removing his seatbelt as he drove past the State
Troopers. Once l\/iovant parked, Sergeant Folsoni walked toward Movant’s vehicle and
began to talk to him. Sergeant Folsom was carrying a manila envelope containing the arrest
warrant Sergeant Folsom told Corporal Mertens to go to the back of the police vehicle
and open the trunk so that Movant would believe Corporal Mertens was retrieving
Movant’s computer equipmentl

Sergeant Folsom testified that Movant had exited his vehicle and was facing
Sergeant Folsom in a “bladed position”: at a 45~degree angle, with one foot in front of the
other. Sergeant Folsoni stepped around l\/[ovant’s vehicle and saw a holster on Movant’s
right hip that contained a handgun While asking Movant why he had a gun, Sergeant
Folsom removed his own handgun from the holster on his hip and held it down by his side
in front of his hip. Movant said he was authorized to have a gun, and he moved his right
hand to his holster and began manipulating the flap on the holster. Sergeant Folsom
ordered Movant to get down on the ground, and Movant did not comply, but turned and
squarely faced Sergeant Folsom. Movant opened the flap of the holster and placed his

hand on the buttstock of the weapon.

Sergeant Folsom raised his weapon and again ordered Movant to get on the ground.
Corporal Mertens also ordered l\/lovant to get down on the ground. Movant replied, “you’re
going to have to shoot me” and continued to draw his weapon Sergeant Folsom saw the
gun nearly out of the holster, and at that point he fired two shots into Movant’s chest and
one into Movant’s head. Corporal l\/lertens also fired a shot at Movant because he believed
Movant was a threat to Sergeant Folsom. Sergeant Folsom heard the shot and fired an
additional shot into Movant’s head. Movant collapsed onto the ground. Corporal Mertens
called an ambulance while Sergeant Folsom handcuffed lviovant and took Movant’s gun
from his hand, with FBl Agent Mike Maruschak covering Sergeant Folsom.

The State charged Movant with possession of a controlled substance (morphine),
tampering with a judicial officer, possession of up to 35 grams of marijuana, assault of a
law enforcement officer in the first degree (against Sergeant Folsom), assault of a law
enforcement officer (against Corporal l\/lertens), two counts of armed criminal action, and
resisting arrest. At trial, after the State presented testimony from Sergeant Folsom, the
State offered a video into evidence The video was taken from a camera that was on a
watch that Movant had been wearing at the gas station, and it captured the entire incidentl
At the close of the State’s evidence at trial, the trial court granted Movant’s motion for
judgment of acquittal on the charges of tampering and resisting arrest. The trial court
concluded that Movant’s threats against judicial officers in his video were not sufficient to
support the charge of tampering, and that there was no evidence Movant was aware he was
being arrested when he met the State Troopers at the gas station

The jury convicted Movant of all counts but assault of a law enforcement officer

(against Corporal Mertens) and the associated charge of armed criminal action. After a

 

sentencing phase, the jury recommended sentences of two years forl possession of
morphine, one year for possession of marijuana, 30 years for first-degree assault of a law
enforcement officer, and 30 years for armed criminal action. The trial court sentenced
Movant in accordance with the jury’s recommendation and ordered the sentences to run
concurrently This Court affirmed Movant’s convictions and sentence on appeal. mg
Weinhaus, 459 S.W.3d 916 (Mo. App. E.D. 2015).

Movant timely filed his Rule 29.15 motion, alleging several grounds of ineffective
assistance of counsel. As relevant for this appeal, he alleged that his trial counsel was
ineffective for failing to call several witnesses Among these, Movant argued that his trial
counsel should have had a forensic expert and a video expert testify, regarding the video
taken from Movant’s watch. Movant argued that the video was inconsistent with the State
Troopers’ testimony regarding Movant’s words and actions. Movant also argued his trial
counsel was ineffective for failing to call witnesses who (1) would have testified they did
not see Movant wearing a holster, or (2) would have testified regarding his usual practice
for wearing a holster while driving; both in order to contradict the State Troopers’
testimony that l\/iovant had a holster holding a gun on his right hip. The motion court
denied Movant’s motion without an evidentiary hearing, finding that the record
conclusively refuted Movant’s claims. This appeal follows

Standard of Review

Our review of the motion court’s denial of a Rule 29.15 motion is “limited to a
determination of whether the findings and conclusions of the [motion] court are clearly
erroneous.” Rule 29.15(k); Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014).

“F indings and conclusions are clearly erroneous if, after a review of the entire record, the

 

court iS left with the definite and firm impression that a mistake has been made.” M,
422 S.W.Sd at 294 (quoting Moss v. State, 10 S.W.Sd 508, 511 (Mo. banc 2000)).

“A movant is not entitled to an evidentiary hearing unless: (l) the movant pleaded
facts, not conclusions, warranting relief; (2) the facts alleged raised matters not refuted by
the record; and (3) the matters complained of resulted in prejudice to the movant.”
Matthews v. State, 175 S.W.Sd 110, 113 (Mo. banc 2005). ln the context of claims of
ineffective assistance of counsel, as here, “the movant must allege facts, not refuted by the
record, showing that counsel’s performance did not conform to the degree of skill, care,
and diligence of a reasonably competent attorney and that the movant was thereby
pr'ejudiced.” l\/Iorrow v. State, 21 S.W.3d 819, 823 (l\/Io. banc 2000) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “To demonstrate prejudice, the facts alleged must
show a reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been dif`fer'ent.” M, 21 S.W.3d at 823 (citing State v. Carter, 955 S.W.2d
548, 554 (Mo. banc 1997)).

Discussion

Movant raises four points on appeal. ln each of them he argues the motion court
clearly erred in denying his motion without an evidentiary hearing because he alleged
unrefuted facts that his counsel was ineffective for failing to call certain witnesses at trial.

In order to be entitled to an evidentiary hearing on a claim of ineffective assistance
for failure to call a witness, l\/Iovant has to allege unrefuted facts establishing: “i) trial
counsel knew or should have known of the existence of the witness; 2) the witness could
be located through reasonable investigation; 3) the witness would testify', and 4) the

witness’s testimony would have produced a viable defense.” l\/iclntosh v. State, 413

 

S.W.3d 320, 328 (l\/Io. banc 2013) (quoting Worthington v. State, 166 S.W.3d 566, 577
'(Mo. banc 2005)) (internal alteration omitted). “Counsel’s decision not to call a witness is
presumptively a matter of trial strategy and will not support a claim of ineffective
assistance of counsel unless [Movant] clearly establishes otherwise.” Mclntosh, 413
S.W.3d at 328 (quoting Williams v. State, 386 S.W.3d 750, 753 (Mo. banc 2012)). We
discuss each of Movant’s points on appeal in turn.
M

Movant argues the motion court clearly erred in denying his motion without an
evidentiary hearing because he alleged um‘efuted facts showing his trial counsel was
ineffective for failing to call a crime scene forensic expert, such as Gene Gietzen, who
would have testified that Movant’s movements on the video taken from the camera on the
Movant’s watch were inconsistent with Sergeant Folsom’s testimony that Movant moved
from a “bladed position” to facing Sergeant Folsom squarely. We disagree

One of the things Movant’s motion had to allege was that this testimony would
have provided l\rovant a viable defense However, Movant’s argument here is simply that
this testimony regarding the body movements an expert could have inferred from the video
taken from the watch on Movant’s wrist that day would impeach the testimony of Sergeant
Folsorn that Movant began in a “bladed position” and their turned to face Sergeant Folsom
directly. The failure to offer testimony that would have only impeached the testimony of
a State’s witness does not warrant relief for ineffective assistance of counsel. Whited v.
§tate, 196 S.W.3d 79, 82 (Mo. App. E.D. 2006). Rather, “when the testimony of the

witness would also negate an element of the crime for which a movant was convicted, the

 

testimony provides the movant with a viable defense.” I_d. (citing Williams v. State, 8
S.W.3d 217, 219-20 (Mo. App. E.D. 1999)) (emphasis added).

Here, whether Movant moved from a “bladed position” to facing Sergeant Folsom
squarely is not an element of any of the crimes for which he was convicted The jury
viewed the video, and Movant’s counsel, while not arguing the video contradicted this
particular testimony about Movant’s body positioning, did argue that the video was
inconsistent with the State Troopers’ testimony in a number of ways. Even assuming
arguendo Movant did not move from a “bladed position” to squarely facing Sergeant
Folsom, the evidence that he was in the act of drawing a weapon when Sergeant Folsom
shot him would be undisturbed Thus, Movant has failed to allege this testimony would
have provided him with a viable defense Movant was therefore not entitled to an
evidentiary hearing on this claim, and the motion court did not clearly err in denying his
motion in this respect 3 § Mclntosh, 413 S.W.3d at 328. Point denied.

M

Movant next argues that the motion court clearly erred in denying his motion

without an evidentiary hearing because he alleged unrefuted facts showing his trial counsel

was ineffective for failing to call the FBI agents who were present at the gas station as

 

3 We note that the motion court summarily denied Movant’s motion on the basis that he failed to “state in
any of his claims that he was prejudiced by the actions of his attorney,” but rather claimed only “tlrat the
actions of his attorney might have had some effect,” and that this did not meet the standards outlined in
Strickiand v. Wasl_ri_ngt@, 466 U.S. 668, 687 (1984). Howevcr, in each of Movant’s claims, he alleged that
there was a reasonable probability that the outcome of his trial would have been different, but for trial
counsel’s errors. Tlris is sufficient under Strickland. §g Tavlor v. State, 382 S.W.3d 78, 81 (Mo. banc
2012) (“The hallmark of Strickland prejudice is a tinding, by a reasonable probability, that the movant would
have received a different result at trial if counsel had not made the unprofessional errors alleged"). However,
we may affirm the motion court’s judgment on any basis supported by the record. Stanley v. State, 420
S.W.3d 532, 543 n.9 (Mo. banc 2014), 'l`hus, while we do not affirm on this basis, we do find the record
establishes that the motion court did not clearly err in its result.

9

 

witnesses, in order to refute testimony that Movant was wearing a holster containing a gun
on his right hip. \\/e disagree

Movant alleged in his motion that both agents testified in depositions that they did
not see a holster orr Movant’s right hip. l\/lovant further alleged that had a holster been on
Movant’s right hip, the agents would have been able to see it if l\/fovant had been standing
in a “bladed position” toward Corporal l\/fertens or squarely facing Corporal Mertens.
However, there was no evidence at trial that r\/lovant faced Corporal Mertens in either of
these positions; rather, the testimony was that l\/Iovant faced Sergeant Folsom, and that
Corporal Mertens was at a different angle There was also testimony that the FBI agents
were further away, across the parking lot. Therefore, Movant has not alleged unrefuted
facts that the gun would have been visible to the agents had it been on l\/Iovant’s right hip.
§ Matthews, 175 S.W.3d at 113. Accordingly, even assuming the testimony that the
agents did not sec a gun on Movant’s right hip was true, this does not provide Movant a
viable defense

l\/loreover, while Movant alleges in a conclusory fashion that no reasonable trial
strategy justified his trial counsel’s failure to call the agents as witnesses, Movant has not
alleged facts that would rebut the presumption that his counsel’s decision was anything
other than reasonable trial strategy. g Mclntosh, 413 S.W.3d at 328. Movant’s trial
counsel argued in closing argument an adverse inference based on the State’s failure to call
the agents to corroborate Sergeant Folsom’s and Corporal l\/lertens’ testimony, which he
would not have been able to do if he had called them to testify. Further, Movant makes no
allegation that the agents’ testimony would have negated an element of the crimes for

which he was convicted; specifically, Movant does not allege they would testify that

10

 

Movant was not disregarding Sergeant Folsom’s directives to get on the ground, that
Movant did not reach for a gun, and that Movant did not have a gun in his hand when they
approached him after he fell to the ground

Movant has failed to allege facts that if true would rebut the presumption that his
trial counsel acted reasonably S_ee id Therefore, the motion court did not clearly err in
denying his motion without an evidentiary hearing in this respect Point denied

Point lll

In his third point, l\/lovant argues that the motion court clearly erred in denying his
motion without an evidentiary hearing because he alleged unrefuted facts showing his trial
counsel was ineffective for failing to call Levi Weinhaus (Weinhaus) as a witness, because
Weinhaus would have testified that Movant wore his holster on his left hip while driving,
contradicting the testimony that l\/Iovant was wearing a holster containing a gun on his right
hip. We disagree

In his motion, Movant alleged that Weinhaus would have testified that Movant
always wore his holster on his left hip while driving because the holster would interfere
with his seatbelt. l-lowever, l\/fovant does not allege Weinhaus was present or could have
testified as to how Movanl wore the holster at the gas station. Further, even if the jury
would have inferred from Weinhaus’ testimony that Movant wore the gun on his left hip
while driving, this would not have contradicted the State Troopers’ testimony that the
holster was on l\/lovant’s right hip by the time he was standing outside his vehicle Finally,
as discussed above even ifone assumes that the gun was on Movant’s left hip rather than
his right hip, this does not negate an element of any of the crimes of which he was

convicted

11

 

Thus, Movant’s motion failed to allege facts that, if true, would have provided
Movant with a viable defense had Movant’s counsel called Weinhaus as a witness E
W_l_rited_, 196 S.W.fid at 82. The motion court did not err in denying Movant’s motion
without an evidentiary hearing in this respect. Point denied

Point lV

Finally, l\/lovant argues that the motion court clearly erred in denying his motion
without an evidentiary hearing because he alleged unrefuted facts showing his trial counsel
was ineffective for failing to call a video exper't, such as J im Byrne (Byrne), to testify that

G

Movant’s words on the video were actually, ‘you don’t have to shoot me” We disagree

Movant alleged in his motion that Byrne’s testimony would have contradicted
Sergeant Folsom’s testimony that l\/lovant said, “you’re going to have to shoot me.”
However, here again, this is an allegation only that Byrne’s testimony would have
impeached Sergeant Folsom’s testimony This alone, without an allegation that the
testimony would have negated one of the elements ofthe crimes, is not sufficient to warrant
relief. §_tegylhjt;d, 196 S.W.3d at 82.

Additionally, the jury viewed the video. Movant’s trial counsel, when cross~
examining Sergeant Folsom, also raised the possibility that what l\/Iovant said in the video
was “you don’t have to shoot me.” l\/lovant’s counsel also argued during closing argument
that Movant spoke softly in the video and could have been saying either phrase, noting that
the jury would have to decide what Movant actually said

Movant has failed to allege facts that if true would warrant relief. Thus, the motion

court did not err in denying his motion without an evidentiary hearing in this respect. Point

denied

12

 

Conclusion
Movant failed to allege facts that if true would establish his trial counsel’s
assistance was ineffective Specifically, while the witnesses would have provided
testimony to impeach the State Troopers’ testimony in various respects, they would not
have provided testimony that negated any element of the crimes for which Movant was on
trial. Thus, Movant’s motion did not sufficiently allege facts that entitled him to an
evidentiary hearing, and the motion court did not err in denying his motion Without a

hearing The motion court’s judgment is affirmed

/;/amf wharf

GM. Ga ‘tner, Jr.,qudge
James M. Dowd, P. J., concurs.
Kul't S. Odenwald, J., Concurs.

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