Court of Appeals of Missouri, Western District, Second Division
As Corrected September 29, 2015.
[Copyrighted Material Omitted]
APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY, MISSOURI. THE HONORABLE R. MICHAEL WAGNER, JUDGE.
Richard A. Starnes, for Respondent.
Ellen H. Flottman, for Appellant.
Before Division Two: Thomas H. Newton, Presiding Judge, Victor C. Howard, Judge and Mark D. Pfeiffer, Judge. All concur.
VICTOR C. HOWARD, J.
Amanda Bazell appeals her convictions and sentences following a jury trial for burglary in the first degree, section 569.160, RSMo 2000, two counts of stealing firearms, one count of stealing over $500, and one count of stealing under $500, section 570.030, RSMo Cum. Supp. 2013. She contends that the trial court abused its discretion in denying her request for a mistrial after a detective testified that he compiled a photo lineup from jail photos. Bazell also argues that the trial court plainly erred in accepting the jury's verdict for two counts of stealing firearms and in sentencing her for both counts in violation of her right to be free from double jeopardy. Bazell's convictions and sentences for first-degree burglary, one count stealing firearms, stealing property over $500, and stealing property under $500 are affirmed. Her conviction and sentence for one count of stealing firearms is reversed.
Bazell does not challenge the sufficiency of the evidence. The evidence, viewed in the light most favorable to the verdict, established that on Sunday morning, March 10, 2013, Bazell broke into the home of Phillip and Nancy Connaughton in Garden City, after the Connaughtons had left for church, and stole a Berretta Elite .40 caliber pistol, a Ruger .22 caliber rifle, and a laptop, jewelry box, suitcase, and two pairs of tennis shoes. Later in the morning, Bazell broke into the home of Mark and Veronica Stout in Pleasant Hill. Mrs. Stout was at church at the time, and Mr. Stout was sleeping in his bedroom. Mr. Stout woke when he heard his back door creak open and confronted Bazell in the dining room. Bazell said she was looking for Ashley to drop something off, and Mr. Stout said she had the wrong house. Mr. Stout continued to question Bazell as she headed back to her car. Mr. Stout got the license plate number on the car and called the police after Bazell left. Bazell stole three rings with a value of $8000 from the Stouts' home.
Bazell was charged as a prior and persistent offender with two counts of first-degree burglary, three counts of felony stealing, and one count of misdemeanor stealing. The jury returned guilty verdicts for one count of first-degree burglary and all of the stealing counts. It was deadlocked on the remaining burglary count for the burglary of the Connaughton home, and the trial court declared a mistrial as to that count. The State subsequently dismissed that count nolle prosequi. The trial court sentenced Bazell to concurrent terms of twelve years imprisonment for the burglary, stealing firearms, and stealing over $500 convictions and one year in the county jail for the stealing under $500 conviction. This appeal by Bazell followed.
In her first point on appeal, Bazell claims that the trial court abused its discretion in denying her request for mistrial after a detective testified that he compiled a photo lineup from jail photos. She argues that the testimony constituted evidence
of other crimes and violated her right to be tried only for the offense charged and destroyed the presumption of innocence.
A mistrial is a drastic remedy reserved for the most extraordinary circumstances, and the decision whether to grant one is left to the trial court's sound discretion. State v. Shaffer, 439 S.W.3d 796, 801 (Mo. App. W.D. 2014). " A mistrial should only be granted when the prejudice to the defendant cannot be removed in any other way." Id.
Generally, evidence of the commission of separate and distinct crimes is not admissible unless it has some legitimate tendency to directly establish the defendant's guilt of the charged crime. State v. McFadden, 369 S.W.3d 727, 741 (Mo. banc 2012). Evidence of other crimes, when not properly related to the cause on trial, violates a defendant's right to be tried only for the offense charged. State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008). But vague or speculative references to the defendant's involvement in other crimes do not violate this right. State v. Taborn, 412 S.W.3d 466, 473 (Mo. App. W.D. 2013). To violate the rule against the admission of evidence of other crimes, the evidence must show that the defendant committed, was accused of, was convicted of, or was definitely associated with the other crimes or misconduct. Id. Vague references are not clear evidence associating a defendant with other crimes. Id. The defendant has the burden to show that the challenged testimony constituted evidence of other crimes. State v. Clark, 112 S.W.3d 95, 100 (Mo. App. W.D. 2003). Testimony concerning the use of a mug shot that discloses information that a defendant has committed other crimes is improper. State v. Wright, 978 S.W.2d 495, 498 (Mo. App. W.D. 1998)(it is the defendant's burden to show that the use of the term " mugshot" constituted evidence of prior crimes).
Regarding a photo lineup shown to a witness in this case, a detective ...