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State v. Turrentine

Court of Appeals of Missouri, Southern District, Second Division

November 18, 2016

STATE OF MISSOURI, Plaintiff-Respondent,
v.
THOMAS NATHANIEL TURRENTINE, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E. Mountjoy

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

          OPINION

          GARY W. LYNCH, P.J.

         The trial court found Thomas Nathaniel Turrentine ("Defendant") guilty of stealing, see section 573.030, [1] and property damage, see section, 569.100, [2] under principles of accomplice liability, see section 562.041.[3] On appeal, Defendant contends that the trial court erred: (1) "in finding [Defendant] guilty . . . for the class C felony of stealing . . . in that the State failed to adduce substantial evidence of the value of the computer that had been taken[;]" (2) "in finding [Defendant] guilty of property damage . . . in that there was insufficient evidence to prove beyond a reasonable doubt the essential element that [Defendant] had the purpose of promoting property damage, or could have reasonably anticipated that Georges would damage property[;]" (3) "in sentencing [Defendant] to five years['] imprisonment for the Class D felony of property damage, . . . in that the maximum sentence authorized by the legislature for a Class D felony was four years['] imprisonment[;]" and (4) "in sentencing [Defendant] to five years['] imprisonment, because . . . the sentencing enhancement factors contained in section 570.030.3 . . . only apply to 'any offense in which the value of property or services is an element[.]'" We find no merit in Defendant's second point; however, his third and fourth points are meritorious, which makes his first point moot. The trial court's judgment, therefore, finding Defendant guilty of these offenses is affirmed, but Defendant's sentences are reversed. The case is remanded for resentencing as directed in this opinion.

         Factual and Procedural Background

         Viewed in the light most favorable to the State, State v. Hopper, 326 S.W.3d 143, 146 (Mo.App. 2010), the facts adduced at trial support that Defendant and Timothy Georges visited the same pawn shop together at 2:30 p.m. and again at 5:06 p.m. on September 21, 2013. About an hour after their last pawn shop visit, Defendant and Georges arrived at Bass Pro Shops together on bicycles. Defendant and Georges entered a portion of Bass Pro Shops reserved for non-retail activities. Defendant and Georges proceeded through multiple sets of doors to rooms and Defendant held one set of the doors open for Georges. Defendant then left Bass Pro Shops and waited by the pair's bicycles. While Defendant was waiting, Georges stole a laptop and damaged the wall-mounted projector for a Smart board. The pair left together on their bicycles.

         Defendant was charged with stealing in violation of section 570.030, in that Defendant, "acting with another, appropriated a netbook computer of a value of at least five hundred dollars[.]" Defendant was also charged with property damage in the first degree in violation of section 569.100, in that Defendant, "acting with another, knowingly damaged a Smart projector. . . by attempting to remove the Smart projector from the wall, and the damages to such property exceeded seven hundred and fifty dollars[.]"

         Following a bench trial, Defendant was found guilty of both offenses and was sentenced to five years' imprisonment in the Department of Corrections on each with the sentences to run concurrently. Defendant timely appeals.

         Discussion

         For ease of analysis, we take Defendant's points out of order.

         Point Four-No Enhanced Punishment for Stealing

Defendant's fourth point contends:
The trial court plainly erred . . . in sentencing [Defendant] to five years['] imprisonment [for felony stealing], because this violated his right to due process, as guaranteed by the Fourteenth Amendment to the United States Constitution, and Article I, section 10 of the Missouri Constitution, in that the sentencing enhancement factors contained in section 570.030.3, including enhancement based upon value, only apply to "any offense in which the value of property or services is an element, " and since value is not an element of stealing, the sentencing enhancement factors under section 570.030.3 do not apply, and [Defendant] can only be convicted of and sentenced for misdemeanor stealing.

         Defendant raises this sentencing issue for the first time on appeal. This issue is not preserved for our review; however, Defendant urges plain error review.

Any issue that was not preserved can only be reviewed for plain error, which requires a finding that manifest injustice or a miscarriage of justice has resulted from the trial court error. Rule 30.20 provides that the appellate courts can conduct plain error review of sentences. Being sentenced to a punishment greater than the ...

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