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State v. Ross

Court of Appeals of Missouri, Southern District, First Division

May 5, 2015

STATE OF MISSOURI, Respondent,
v.
KURT ROSS, Appellant

          APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY. Honorable Kenneth G. Clayton, Judge.

         For Appellant: Samuel Buffaloe.

         For Respondent: Chris Koster & Richard A. Starnes.

          OPINION

         DANIEL E. SCOTT, J.

Page 141

          Kurt Ross appeals two felony convictions for stealing firearms. We address here only a plain error double jeopardy claim that involves statutory interpretation.[1]

         Background

         Ross borrowed two heirloom rifles from a friend, sold them to a gun dealer, and pocketed $200. He was charged with and convicted of two counts of felony stealing, one for each rifle sold, and received two concurrent sentences.[2]

         Double Jeopardy Claim

         Ross charges that the trial court plainly erred in accepting two firearm-theft verdicts and sentencing Ross on two counts instead of just one. To quote Ross, this was double jeopardy since he " stole these firearms at the same time, [which] only constitutes a single offense because section 570.030.3 lists the unit of prosecution as 'any firearms.'" Alternately, Ross claims that " any firearms" is ambiguous as to the unit of prosecution, so the rule of lenity requires courts to adopt the statutory construction that favors Ross.

         Three sentences from Ross's briefs capture his argument:

o " The question presented in this appeal is whether the alleged simultaneous appropriation of two firearms is one or two violations of this statute in light of the 'any firearms' language used in the statute."
o " Had the general assembly intended to punish a person separately for each firearm taken at the same time, it could have expressed this intention by using the term 'firearm' instead of 'firearms.'"
o " Because the phrase 'any firearms' is at least ambiguous to the allowable unit of prosecution, and because that ambiguity must be resolved in Mr. Ross's favor, this Court must reverse one of Mr. Ross's stealing ...

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