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State v. Bazell

Supreme Court of Missouri, En Banc

August 23, 2016

STATE OF MISSOURI, Respondent,
v.
AMANDA N. BAZELL, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY The Honorable R. Michael Wagner, Judge

          PER CURIAM

         Amanda Bazell (Defendant) was convicted of burglary and four counts of stealing for breaking into two residences and stealing numerous items of property from each. On appeal, she challenges her convictions for two counts of felony stealing that arose from the theft of two firearms, which she stole in the course of one burglary, as a violation of her right to be free from double jeopardy. Defendant also claims that the trial court abused its discretion in failing to grant a mistrial due to testimony regarding the composition of a photograph lineup, which she claims constituted inadmissible evidence of other crimes.

         Under section 570.030.1, [1] a person commits the crime of stealing when she appropriates the property or services of another with the purpose to deprive the owner thereof. Section 570.030.3 provides for the enhancement to a class C felony of "any offense in which the value of property or services is an element" if certain conditions are met. The definition of stealing in section 570.030.1 is clear and unambiguous, and it does not include the value of the property or services appropriated as an element of the offense. As a result, enhancement pursuant to section 570.030.3 does not apply to Defendant's stealing convictions for the theft of the firearms. These offenses must, therefore, be classified as misdemeanors.

         This Court finds no abuse of discretion in the trial court's failure to grant a mistrial due to the admission of testimony concerning the composition of a photograph lineup. The testimony did not establish that Defendant's photograph was retrieved from the jail system, nor did it clearly associate Defendant with other crimes.

         The trial court's judgment is affirmed in part and reversed in part. The case is remanded for proceedings consistent with this opinion.

         Factual Background

         Viewing the evidence in the light most favorable to the verdict, Defendant broke into a home and stole a .40-caliber pistol, a .22-caliber rifle, a laptop computer, a jewelry box, a suitcase, and two pairs of tennis shoes. Later the same day, she broke into a second home where she stole three rings with a value of $8, 000. Defendant was charged as a prior and persistent offender with two counts of first-degree burglary and four total counts of stealing under section 570.030. Three of the four stealing counts were charged as class C felonies-one count for each of the two firearms stolen and one count for the rings stolen as they had a value more than $500 but less than $25, 000. The fourth stealing count was charged as a misdemeanor and correlated to the non-firearms personal property stolen in the first burglary. The jury returned guilty verdicts for one count of first-degree burglary and all four of the stealing counts. The State dismissed the remaining burglary count. The trial court sentenced Defendant to concurrent terms of 12 years for the burglary and felony stealing counts, and one year in the county jail for the misdemeanor stealing count.

         This Court granted transfer after opinion by the court of appeals. Mo. Const. art. V, sec. 10.

         Section 570.030.3 Does Not Apply to Defendant's Convictions for Stealing The Firearms

         Defendant argues that the trial court violated her right to be free from double jeopardy by convicting and sentencing her on two counts of stealing firearms in the course of one burglary. The Fifth Amendment Double Jeopardy Clause, made applicable to the states through the Fourteenth Amendment, protects a defendant "both from successive prosecution for the same offense and from multiple punishments for the same offense." Mallow v. State, 439 S.W.3d 764, 771 (Mo. banc 2014). Defendant did not raise her double jeopardy claim in the trial court. Although constitutional issues must generally be raised at the earliest opportunity to be preserved for appellate review, the right to be free from double jeopardy is a constitutional right that "goes to the very power of the State to bring the defendant into court to answer the charge brought against him." State v. Liberty, 370 S.W.3d 537, 546 (Mo. banc 2012). As a result, an appellate court reviews for plain error when it can determine from the face of the record that the trial court had no power to enter the conviction. Id.

         Double jeopardy analysis regarding multiple punishments is limited to determining whether the legislature intended cumulative punishments. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). Legislative intent is ascertained by looking to the unit of prosecution allowed by the statute under which the defendant was convicted. Liberty, 370 S.W.3d at 546. The relevant statute here is section 570.030.3, the felony enhancement provision of Missouri's stealing statute. That provision states that:

3. Notwithstanding any other provision of law, any offense in which the value of property or services is an element is a class C felony if:
(1) The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars; or
(2) The actor physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of: …
(d) Any firearms.

         Section 570.030.3. The State argues that, under section 570.030, stealing is a class A misdemeanor unless the property stolen is among those designated under section 570.030.3 (here, "any firearms"), in which case it can be punished as a class C felony. The State and Defendant argue over the meaning of the term "any firearms" as it pertains to whether cumulative punishments are permissible.

         This reading of section 570.030.3, however, critically ignores the fact that the felony enhancement provision, by its own terms, only applies if the offense is one "in which the value of the property or services is an element." Stealing is defined in section 570.030.1 as "appropriat[ing] property or services of another with the purpose to deprive him or her thereof, either without his consent or by means of deceit or coercion." The value of the property or services appropriated is not an element of the offense of stealing.

         In ascertaining what the phrase "in which the value of the property or services is an element" means, this Court employs the primary rule of statutory interpretation, which is to give effect to the plain and ordinary meaning of the statutory language. State ex rel. Valentine v. Orr, 366 S.W.3d 534, 540 (Mo. banc 2012). If the words are clear, the Court must apply the plain meaning of the law. Id. When the meaning of a statute is clear, the Court should not employ canons of construction to achieve a desired result. Goerlitz v. City of Maryville, 333. S.W.3d 450, 455 (Mo. banc 2011).

         Here, there is no need to resort to tools of interpretation because the language of section 570.030.3 is clear. We cannot know why the legislature, in 2002, decided to amend section 570.030.3 to add the requirement that only offenses for which "the value of property or services is an element" may be enhanced to a felony, but this is what the legislature clearly and unambiguously did.[2] As a result, section 570.030.3 does not apply here. Defendant's offenses must be classified as misdemeanors because they cannot be enhanced to felonies by the terms of section 570.030.3.[3] The two felony convictions for the firearms stolen must be reversed and the case remanded.[4]

         Because section 570.030.3 does not apply here, there is no reason to address Defendant's felony stealing double jeopardy argument. This Court need not decide whether a double jeopardy violation occurred as the case can be fully resolved without reaching this constitutional question. See Lang v. Goldsworthy, 470 S.W.3d 748, 751 (Mo. banc 2015). Further, as the offenses here must be classified as two misdemeanors, the potential question of whether those misdemeanors are a violation of her double jeopardy rights was not briefed by the parties. As a result, the Court ...


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