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State v. Pace

Court of Appeals of Missouri, Western District, Third Division

June 26, 2018

RONALD F. PACE, JR., Appellant.

          Appeal from the Circuit Court of Johnson County The Honorable William B. Collins, Judge

          Before: James E. Welsh, P.J., [1] Alok Ahuja and Anthony Rex Gabbert, JJ.

          Alok Ahuja, Judge

         Following a jury trial in the Circuit Court of Johnson County, Appellant Ronald Pace was convicted of felony stealing in violation of § 570.030.[2] The court sentenced him to eight years' imprisonment. Pace appeals. He argues that the circuit court erroneously convicted and sentenced him for felony stealing, when his offense must be classified as a misdemeanor in light of the Missouri Supreme Court's decision in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). Pace also argues that the circuit court erroneously overruled his motion to suppress evidence derived from the warrantless search of an automobile in which he had a possessory interest. We reject Pace's challenge to the circuit court's suppression ruling. As the State concedes, however, under the Bazell decision Pace should only have been convicted and sentenced for misdemeanor stealing. We reverse Pace's felony stealing conviction and sentence, and remand the case to the circuit court for entry of a conviction for misdemeanor stealing, and resentencing accordingly.

         Factual Background

         On July 17, 2014, Valerie Downing, the store manager at Glasscock Jewelry in Warrensburg, waited on a man who would later be identified as Christopher Crouch. Crouch acted oddly. He visited the store three times on the same day. During his first visit, Crouch went directly to the back of the store and asked to see the largest diamond ring the store had for sale. After Downing showed him some of the store's larger and more expensive one-carat diamond rings - but not the store's two-carat ring - Crouch said that those rings were not what he wanted, and he left. About fifteen minutes later, Crouch returned and specifically asked to see a two-carat diamond ring. He explained that he had "just won the lottery," and had "money burning a hole in his pocket." Downing finally showed him the two-carat diamond ring. While looking at the ring, Crouch asked for a bottle of water. After Downing said she did not have bottled water, Crouch got upset and again left the store. Downing became suspicious and called the owner to inform him of the situation. The store's owner instructed her to review the video recording from the store's security camera, and get pictures of Crouch.

         About thirty to forty-five minutes later, as Downing was reviewing the surveillance footage, Crouch returned to the store. Before greeting him, Downing snapped a picture of Crouch with her cell phone. Crouch asked to see the same two-carat diamond ring he had viewed previously; he also asked for a loupe (a magnifier used to view jewels in greater detail). Downing handed Crouch the ring and a loupe. Rather than holding the diamond up to a light source to properly view it with the loupe, Crouch hunched over the display case, away from the light.

         Downing briefly stepped away to retrieve the store owner's phone number, so that she could alert him to the situation. As she did, Crouch turned his back and switched the two-carat diamond ring with a fake ring. When Downing returned, Crouch gave her the fake ring, but she immediately knew it was not the store's ring. Although she could tell that significant effort had been expended to make the fake ring look like the genuine ring, Downing testified that the tag on the fake ring was slightly different than the tag on the genuine ring, the weight was different, and the ring looked slightly different.

         Downing grabbed Crouch's arm and confronted him about his substitution of a fake ring for the store's ring. Crouch feigned ignorance, swatted Downing's arm away, and walked out of the store. Downing chased after him and saw Crouch dive head-first into the passenger seat of a light blue car, which then drove away.

         In addition to her interactions with Crouch, Downing was also suspicious of prior dealings she had had in the store with Pace. Downing suspected that the two men were working together, even though she had never seen them together. Through surveillance footage, Downing was able to identify four separate occasions on which she saw Pace at Glasscock Jewelry. Pace was helped by another employee on the first occasion. Downing remembered that, like Crouch, Pace asked to see the store's largest diamond ring. Pace claimed that he was looking for a ring for his daughter who was getting married. Pace looked at the ring, which was the same one that was later stolen, using a loupe, but ended up not purchasing or taking the ring.

         Downing witnessed Pace attempt to visit the store a second time about a week later, but the store was closed. Pace went around the store looking in the windows, and then left.

         On a third occasion, Pace looked at the two-carat ring for about forty-five minutes. Downing testified that, during this visit, Pace

was acting nervous again, wouldn't make eye contact, wouldn't really engage in a lot of conversation which was odd to be in there for so long and not really have a lot to say. He kept on clenching his hands, which I thought was really odd. He said he was diabetic and he was feeling sick, so he went over to the front case with that diamond clutched in his hand and got some chocolate and was even opening the chocolate with one hand and kind of popping it into his mouth. When he said he was sick, as I said, he just didn't look quite right. I went to the back and got a bottle of my water that I bring for lunch and gave it to him.

         Three or four days later, Pace returned to the store a fourth time. He looked at the two-carat diamond ring, as well as other rings, for thirty or forty-five minutes. Although it was the middle of July, Pace wore a hooded sweatshirt and a hat, which Downing thought was odd. Pace also generally kept his hands in his pockets and "had his hands clutched a lot." Pace used a loupe in the same "incorrect" manner as Crouch. Downing expressed her concerns about Pace to the store's owner.

         The same day as Crouch's theft at Glasscock Jewelry (July 17, 2014), Officer Harold Echols, with the Independence Police Department, was notified of suspicious activity at the Helzberg Diamonds store in the Independence Center shopping mall. Store personnel reported that they believed someone was trying to substitute a fake diamond for a real diamond.

         Officer Echols responded to the mall's parking lot along with mall security. He saw two men in the parking lot standing close together talking. The two men were later identified as Pace and Crouch. As Officer Echols approached in a marked police vehicle, the two men noticed him and started walking away from each other. Crouch then started to run. Officer Echols radioed for assistance to help in apprehending Crouch, and then went to talk to Pace. After explaining why he was there, Officer Echols asked Pace for permission to search him. Pace consented, and Officer Echols found a set of keys and several business cards for jewelry stores in Pace's pockets. Pace stated that he did not have a car, and that "the keys didn't fit anything, they didn't belong to anything." Pace told Officer Echols that he had gotten a ride to the mall, and that he was "spending other people's money and buying jewelry to sell to these other people."

         While Officer Echols was talking with Pace, Independence Police Officer Nick Logan responded to the request for assistance and apprehended Crouch. During a consent search of Crouch, ...

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