Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of St. Louis County Honorable Ellen L.
Siwak Filed: January 24, 2017
M. Hess, Chief Judge
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.
was indicted for first-degree burglary and felony stealing
over $500. The evidence at trial, viewed in the light most
favorable to the verdict,  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,  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.
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.This appeal follows.
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.
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).
State v. Bazell, the appellant was convicted of
various stealing offenses under Section 570.030,
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 § ...