FROM THE CIRCUIT COURT OF CASS COUNTY The Honorable R.
Michael Wagner, Judge
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.
section 570.030.1,  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.
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.
trial court's judgment is affirmed in part and reversed
in part. The case is remanded for proceedings consistent with
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.
Court granted transfer after opinion by the court of appeals.
Mo. Const. art. V, sec. 10.
570.030.3 Does Not Apply to Defendant's Convictions for
Stealing The Firearms
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.
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.
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.
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
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).
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. 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. The two felony convictions for the
firearms stolen must be reversed and the case
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 ...