Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E.
IN PART, REVERSED IN PART, AND REMANDED
W. LYNCH, P.J.
trial court found Thomas Nathaniel Turrentine
("Defendant") guilty of stealing, see
section 573.030,  and property
damage, see section, 569.100,  under principles of accomplice liability,
see section 562.041. 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.
and Procedural Background
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
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[.]"
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.
ease of analysis, we take Defendant's points out of
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
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 ...