Court of Appeals of Missouri, Southern District, First Division
May 5, 2015
STATE OF MISSOURI, Respondent,
KURT ROSS, Appellant
FROM THE CIRCUIT COURT OF PHELPS COUNTY. Honorable Kenneth G.
Appellant: Samuel Buffaloe.
Respondent: Chris Koster & Richard A. Starnes.
E. SCOTT, J.
Ross appeals two felony convictions for stealing firearms. We
address here only a plain error double jeopardy claim that
involves statutory interpretation.
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
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.
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
convictions and order him discharged from that
The Double Jeopardy Clause is offended only to the extent
that a court imposes a multiple punishment where the
legislature did not intend a multiple punishment."
State v. Heslop, 842 S.W.2d 72, 75 (Mo. banc 1992).
In Heslop, our supreme court considered "
whether the legislature intended to permit multiple
punishments for stealing more than one item of property from
the same owner at the same time" and found that it did.
Id. at 75-76. Heslop effectively negated
Missouri's single larceny rule, which held that "
'[w]here several articles are stolen from the same owner
at the same time and place, only a single crime is committed
....'" Id. at 75 (quoting State v.
Cody, 525 S.W.2d 333, 334 (Mo. banc
stealing statute, § 570.030, comprised eight subsections
at the time of this offense. Subsection 1 defined the
A person commits the crime of stealing if he or she
appropriates property or services of another with the purpose
to deprive him or her thereof, either without his or her
consent or by means of deceit or coercion.
2 and 5 dealt with evidentiary issues and certain charging
mechanics. The remaining subsections provided felony
punishments for various thefts (#3, 4, 6, 7) and that any
other theft was a misdemeanor (#8).
Heslop, Ross errs in claiming that a felony
punishment provision shows he cannot be
convicted for both thefts. Per Heslop and
§ 570.030.1, Ross committed the crime of stealing twice,
once for each gun. He could be charged with both crimes,
found guilty twice, and punished twice. " The criminal
code shows legislative intent to punish the commission of
separate crimes." Heslop, 842 S.W.2d at 76.
argument seems more about two felony punishments,
which differs from Point III's double jeopardy claim that
Ross could be convicted only once on this record.
This ends our inquiry; we will not devise our own arguments
for reversal or forsake neutrality to advocate for a party.
Point denied. Judgment affirmed.
W. BATES, J. -- CONCURS
W. FRANCIS, JR., P.J./C.J. -- CONCURS
We affirm as to Ross's other points per
Missouri Court Rule 30.25. After careful consideration, all
judges agree that an extended opinion on those claims would
have no precedential value. We have furnished the parties a
memorandum, for their information only, explaining our
disposition of those points.
The record indicates Ross also burned the
same friend's truck, destroying it, and in a separate
case was convicted of two additional felonies.
Heslop's guidance on
legislative intent as to stealing distinguishes this case
from those involving other crimes, like State v.
Liberty, 370 S.W.3d 537 (Mo. banc 2012), where appellate
courts were forced to use the rule of lenity as a last resort
since they could make " 'no more than a guess as to
what the legislature intended.'" Id. at 547
(quoting Fainter v. State, 174 S.W.3d 718, 721
The language Ross cites (" Any
firearms" ) has been in the statute since 1979.
Specifically § 570.030.3(3)(d), which
as pertinent here makes stealing a class C felony if the
" property appropriated consists of ... [a]ny