Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of the City of St. Louis Honorable
Thomas J. Frawley.
T. Quigless, J.
Luster ("Defendant") appeals from a judgment
convicting him of felony stealing, in violation of Section
570.030.3 RSMo 2000 (Cum. Supp. 2013), following a jury
trial. Defendant argues the trial court erred in convicting
Defendant and sentencing him to a term of four years because
the offense of stealing cannot be enhanced to a felony under
State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). We
reverse Defendant's conviction for felony stealing, and
remand the case to the trial court with instructions to enter
judgment as a misdemeanor and to resentence Defendant
and Procedural Background
was charged with felony stealing, second-degree burglary,
misdemeanor stealing, and second-degree property damage. On
August 23, 2016, a jury found Defendant guilty of felony
stealing and not guilty of the other three counts. Earlier
that same day, the Missouri Supreme Court issued its opinion
in State v. Bazell, which held that the offense of
stealing cannot be enhanced to a felony under Section
570.030.3. Bazell, 497 S.W.3d at 266-67. Defendant
filed a motion for judgment of acquittal notwithstanding the
verdict, arguing his conviction was unlawful in light of the
Supreme Court's holding in Bazell. The trial
court denied the motion, accepted the jury's verdict, and
sentenced Defendant to a term of four years. This appeal
raises one point on appeal, divided into three
Subparts. In Subpart A, Defendant argues, "The
trial court erred in failing to enter judgment of acquittal
notwithstanding the verdict, because the jury was erroneously
instructed based on an unconstitutional application of the
law . . . in that the Missouri Supreme Court issued a
decision nullifying [Defendant]'s conviction on that same
day." In Subpart B, Defendant argues, "This court
traditionally sets precedence for the Southern and Western
Districts, as well as follows the precedence of them both
respectively, because showing uniformity across the
jurisdictions is imperative for a fair and justice [sic]
judicial system, especially in that the Missouri Supreme
Court has rendered a decision effecting the entire state of
Missouri." In Subpart C, Defendant argues, "The
trial court erred in sentencing Appellant to four years in
the Missouri Department of Corrections, because the jury
found Appellant not guilty of misdemeanor stealing and felony
stealing was an unconstitutional application of law, in that
Section 570.030.3 does not apply to [Section]
sole point on appeal, Defendant argues - and the State
concedes - that the trial court erred in convicting Defendant
of felony stealing and sentencing Defendant to a term of four
years in prison, in light of the Supreme Court's decision
in State v. Bazell, 497 S.W.3d 263, which was
decided on the same day the jury returned its guilty verdict
against Defendant. Defendant's claim involves the
interpretation and application of Section 570.030, which is a
question of law this Court reviews de novo.
State v. Morris, 197 S.W.3d 638, 640 (Mo. App. W.D.
2006); State v. Cowan, 247 S.W.3d 617, 619 (Mo. App.
W.D. 2008) ("A trial court's construction of a
statute is a question of law which we review de
Bazell, Missouri courts have consistently held that
Section 570.030.3 is inapplicable to the offense of stealing,
regardless of the particular provision of Section 570.030.3
under which enhancement is sought." State v.
Clay, No. ED104095, 2017 WL 4126379 (Mo. App. E.D. Sept.
19, 2017); State v. Smith, 522 S.W.3d 221, 224 (Mo.
banc July 11, 2017). In State v. Smith, the Missouri
Supreme Court specifically held that the felony-enhancement
provisions of Section 570.030.3 do not apply to a charge of
stealing over $500. Smith, 522 S.W.3d at 224. Here,
Defendant was charged and convicted for stealing over $500.
Accordingly, we find the trial court erred in convicting
Defendant of felony stealing and sentencing him to four
years, rather than entering judgment as a misdemeanor.
argues the proper remedy in this case is to vacate his
conviction and discharge him, rather than remand the case for
resentencing as a misdemeanor. Defendant contends that the
jury was presented with a charge for misdemeanor stealing,
and acquitted Defendant on that count. Therefore, he argues,
this Court cannot remand the case for sentencing as a
argument lacks merit because the misdemeanor and felony
stealing charges were based on entirely different conduct by
Defendant. The felony stealing charge was based on
allegations Defendant stole tools worth over $500 from the
home of an individual he was staying with as a guest. The
misdemeanor stealing charge was based on allegations
Defendant subsequently broke into the same home and stole a
television worth less than $500. By finding Defendant not
guilty of misdemeanor stealing, the jury found Defendant did
not break into the home and steal a television. This does not
affect the jury's finding that Defendant was guilty of
stealing the tools.
stealing is a lesser-included offense of felony stealing.
State v. Vineyard, 839 S.W.2d 686, 689 (Mo. App.
E.D. 1992). Where a conviction is reversed on appeal for a
reason that would not affect a lesser-included offense, the
appellate court may remand the case for entry of a conviction
on the lesser-included offense. See State v.
Trotter, 5 S.W.3d 188, 194 (Mo. App. W.D. 1999) (citing
State v. O'Brien, 857 S.W.2d 212, 220 (Mo. banc
1993)). Therefore, the fact that the jury found Defendant not
guilty of stealing the television does not prevent this Court
from remanding the case for resentencing for the misdemeanor
offense of stealing the tools, the offense for which
Defendant was found guilty by the jury. See State ...