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State v. Bowen

Court of Appeals of Missouri, Eastern District, Fifth Division

January 24, 2017

STATE OF MISSOURI, Respondent,
v.
WILLIAM BOWEN, Appellant.

         Appeal from the Circuit Court of St. Louis County Honorable Ellen L. Siwak Filed: January 24, 2017

          Philip M. Hess, Chief Judge

         Introduction

         William Bowen ("Appellant") appeals his conviction, following a jury trial, of the Class C felony of stealing, for which the Circuit Court of St. Louis County entered its judgment imposing a sentence of ten years' imprisonment. In his first point, Appellant argues that pursuant to the recent Missouri Supreme Court case State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), the trial court was without power to enhance his stealing offense to a felony. In his second point, Appellant asserts that there was insufficient evidence for the jury to find him guilty of stealing. We affirm in part, and reverse in part and remand.

         Factual Background

         Appellant was indicted for first-degree burglary and felony stealing over $500. The evidence at trial, viewed in the light most favorable to the verdict, [1] demonstrated that a wicker basket, television, VCR, PlayStation 3, Nintendo Wii, iPhone, Kindle, and multiple video games and DVDs were stolen from Victim's home in the early morning hours of January 2, 2015. That same morning, police officers, after being notified by Victim of the theft, used Victim's "Find my iPhone" account and tracked Victim's stolen iPhone to Appellant's home, [2] which was approximately a half mile from Victim's home. When police officers arrived at Appellant's home, around 7:30 a.m., they observed Appellant walking down the sidewalk holding Victim's wicker basket. The wicker basket contained the stolen VCR, a video game, and the Nintendo Wii. When confronted by the officers, Appellant claimed he found the items in a dumpster. The officers arrested Appellant, and obtained a warrant to search Appellant's home. While executing the warrant, officers found the missing Kindle hidden in the basement crawl space. Officers never found the iPhone, Playstation 3, or television.

         After the close of evidence, the jury acquitted Appellant of burglary, but found him guilty of felony stealing over $500. The trial court sentenced Appellant to ten years' imprisonment.[3]This appeal follows.

         Discussion

         Point I

         In Appellant's first point on appeal, he argues that the trial court plainly erred in entering judgment on his felony stealing conviction and sentencing him to ten years' imprisonment. Appellant argues that, pursuant to State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), he could only have been convicted and sentenced for misdemeanor stealing, which carries a maximum sentence of one year in jail.

         Standard of Review

         Appellant did not raise a Bazell issue with the trial court, and therefore his objection to the trial court's judgment and sentence is untimely and not preserved for appellate review. Accordingly, we will review his first point for only plain error, which requires a finding that manifest injustice or a miscarriage of justice resulted from the trial court's error. See State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009). "Being sentenced to a punishment greater than the maximum sentence for an offense constitutes plain error resulting in manifest injustice." State v. Severe, 307 S.W.3d 640, 642 (Mo. banc 2010).

         Analysis

         In State v. Bazell, the appellant was convicted of various stealing offenses under Section 570.030, [4] including two convictions for stealing firearms. 497 S.W.3d at 265. His convictions for stealing firearms were enhanced to felonies pursuant to § 570.030.3(3)(d). On appeal, the Missouri Supreme Court reversed the appellant's convictions for stealing firearms because the Court concluded that the plain language of § ...


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