             SUPREME COURT OF MISSOURI
                      en banc
STATE OF MISSOURI,                                       )       Opinion issued August 23, 2016
                                                         )
              Respondent,                                )
                                                         )
v.                                                       )      No. SC95318
                                                         )
AMANDA N. BAZELL,                                        )
                                                         )
              Appellant.                                 )

           APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY
                  The Honorable R. Michael Wagner, Judge

PER CURIAM

       Amanda Bazell (Defendant) was convicted of burglary and four counts of stealing

for breaking into two residences and stealing numerous items of property from each. On

appeal, she challenges her convictions for two counts of felony stealing that arose from

the theft of two firearms, which she stole in the course of one burglary, as a violation of

her right to be free from double jeopardy. Defendant also claims that the trial court

abused its discretion in failing to grant a mistrial due to testimony regarding the

composition of a photograph lineup, which she claims constituted inadmissible evidence

of other crimes.
         Under section 570.030.1, 1 a person commits the crime of stealing when she

appropriates the property or services of another with the purpose to deprive the owner

thereof. Section 570.030.3 provides for the enhancement to a class C felony of “any

offense in which the value of property or services is an element” if certain conditions are

met. The definition of stealing in section 570.030.1 is clear and unambiguous, and it

does not include the value of the property or services appropriated as an element of the

offense. As a result, enhancement pursuant to section 570.030.3 does not apply to

Defendant’s stealing convictions for the theft of the firearms. These offenses must,

therefore, be classified as misdemeanors.

         This Court finds no abuse of discretion in the trial court’s failure to grant a mistrial

due to the admission of testimony concerning the composition of a photograph lineup.

The testimony did not establish that Defendant’s photograph was retrieved from the jail

system, nor did it clearly associate Defendant with other crimes.

         The trial court’s judgment is affirmed in part and reversed in part. The case is

remanded for proceedings consistent with this opinion.

                                      Factual Background

         Viewing the evidence in the light most favorable to the verdict, Defendant broke

into a home and stole a .40-caliber pistol, a .22-caliber rifle, a laptop computer, a jewelry

box, a suitcase, and two pairs of tennis shoes. Later the same day, she broke into a

second home where she stole three rings with a value of $8,000. Defendant was charged


1
    All statutory references are to RSMo Supp. 2009 unless otherwise indicated.

                                                 2
as a prior and persistent offender with two counts of first-degree burglary and four total

counts of stealing under section 570.030. Three of the four stealing counts were charged

as class C felonies—one count for each of the two firearms stolen and one count for the

rings stolen as they had a value more than $500 but less than $25,000. The fourth

stealing count was charged as a misdemeanor and correlated to the non-firearms personal

property stolen in the first burglary. The jury returned guilty verdicts for one count of

first-degree burglary and all four of the stealing counts. The State dismissed the

remaining burglary count. The trial court sentenced Defendant to concurrent terms of 12

years for the burglary and felony stealing counts, and one year in the county jail for the

misdemeanor stealing count.

         This Court granted transfer after opinion by the court of appeals. MO. CONST.

art. V, sec. 10.

                   Section 570.030.3 Does Not Apply to Defendant’s
                        Convictions for Stealing The Firearms

       Defendant argues that the trial court violated her right to be free from double

jeopardy by convicting and sentencing her on two counts of stealing firearms in the

course of one burglary. The Fifth Amendment Double Jeopardy Clause, made applicable

to the states through the Fourteenth Amendment, protects a defendant “both from

successive prosecution for the same offense and from multiple punishments for the same

offense.” Mallow v. State, 439 S.W.3d 764, 771 (Mo. banc 2014). Defendant did not

raise her double jeopardy claim in the trial court. Although constitutional issues must

generally be raised at the earliest opportunity to be preserved for appellate review, the


                                             3
right to be free from double jeopardy is a constitutional right that “goes to the very power

of the State to bring the defendant into court to answer the charge brought against him.”

State v. Liberty, 370 S.W.3d 537, 546 (Mo. banc 2012). As a result, an appellate court

reviews for plain error when it can determine from the face of the record that the trial

court had no power to enter the conviction. Id.

        Double jeopardy analysis regarding multiple punishments is limited to

determining whether the legislature intended cumulative punishments. State v. McTush,

827 S.W.2d 184, 186 (Mo. banc 1992). Legislative intent is ascertained by looking to the

unit of prosecution allowed by the statute under which the defendant was convicted.

Liberty, 370 S.W.3d at 546. The relevant statute here is section 570.030.3, the felony

enhancement provision of Missouri’s stealing statute. That provision states that:

       3. Notwithstanding any other provision of law, any offense in which the
       value of property or services is an element is a class C felony if:
       (1) The value of the property or services appropriated is five hundred dollars
       or more but less than twenty-five thousand dollars; or
       (2) The actor physically takes the property appropriated from the person of
       the victim; or
       (3) The property appropriated consists of:
       …
       (d) Any firearms.

Section 570.030.3. The State argues that, under section 570.030, stealing is a class A

misdemeanor unless the property stolen is among those designated under section

570.030.3 (here, “any firearms”), in which case it can be punished as a class C felony.

The State and Defendant argue over the meaning of the term “any firearms” as it pertains

to whether cumulative punishments are permissible.



                                             4
         This reading of section 570.030.3, however, critically ignores the fact that the

felony enhancement provision, by its own terms, only applies if the offense is one “in

which the value of the property or services is an element.” Stealing is defined in section

570.030.1 as “appropriat[ing] property or services of another with the purpose to deprive

him or her thereof, either without his consent or by means of deceit or coercion.” The

value of the property or services appropriated is not an element of the offense of stealing.

         In ascertaining what the phrase “in which the value of the property or services is

an element” means, this Court employs the primary rule of statutory interpretation, which

is to give effect to the plain and ordinary meaning of the statutory language. State ex rel.

Valentine v. Orr, 366 S.W.3d 534, 540 (Mo. banc 2012). If the words are clear, the Court

must apply the plain meaning of the law. Id. When the meaning of a statute is clear, the

Court should not employ canons of construction to achieve a desired result. Goerlitz v.

City of Maryville, 333. S.W.3d 450, 455 (Mo. banc 2011).

         Here, there is no need to resort to tools of interpretation because the language of

section 570.030.3 is clear. We cannot know why the legislature, in 2002, decided to

amend section 570.030.3 to add the requirement that only offenses for which “the value

of property or services is an element” may be enhanced to a felony, but this is what the

legislature clearly and unambiguously did. 2 As a result, section 570.030.3 does not apply


2
    Prior to the 2002 amendment, the felony enhancement provision in section 570.030.3 stated:
           3. Stealing is a class C felony if:
           (1) The value of the property or services appropriated is seven hundred fifty dollars
           or more; or
           (2) The actor physically takes the property appropriated from the person of the
           victim; or
                                                  5
here. Defendant’s offenses must be classified as misdemeanors because they cannot be

enhanced to felonies by the terms of section 570.030.3. 3 The two felony convictions for

the firearms stolen must be reversed and the case remanded. 4

         Because section 570.030.3 does not apply here, there is no reason to address

Defendant’s felony stealing double jeopardy argument. This Court need not decide

whether a double jeopardy violation occurred as the case can be fully resolved without

reaching this constitutional question. See Lang v. Goldsworthy, 470 S.W.3d 748, 751

(Mo. banc 2015). Further, as the offenses here must be classified as two misdemeanors,

the potential question of whether those misdemeanors are a violation of her double

jeopardy rights was not briefed by the parties. As a result, the Court does not address




         (3) The property appropriated consists of:
         …
         (d) Any firearms.
Section 570.030.3, RSMo Supp. 2001. Further, after January 1, 2017, the provision will be
codified at section 570.030.5 and will read:
         5. The offense of stealing is a class D felony if:
         (1) The value of the property or services appropriated is seven hundred fifty dollars
         or more;
         (2) The offender physically takes the property appropriated from the person of the
         victim; or
         (3) The property appropriated consists of:
         …
         (d) Any firearms.
3
  To the extent that State v. Passley, 389 S.W.3d 180 (Mo. App. 2012) holds otherwise, that
decision should no longer be followed.
4
  Although Defendant, in her supplemental brief to this Court, now argues that her felony
conviction for the rings stolen should also be reduced to a misdemeanor, she did not seek such
relief in the court of appeals or in her original briefs to this Court. On transfer to this Court, a
party may not “alter the basis of any claim that was raised in the court of appeals brief.” Rule
83.08(b); see also Linzenni v. Hoffman, 937 S.W.2d 723, 727 (Mo. banc 1997) (denying claims
raised in a party’s substitute brief that were not raised in the brief before the court of appeals).
As a result, the Court will not consider this newly added request for relief.
                                                  6
Defendant’s double jeopardy argument as it was not briefed by the parties. See Looney v.

Hindman, 649 S.W.2d 207, 211 (Mo. banc 1983).

                      Evidence Regarding the Method of Composing
                          a Photograph Lineup Was Admissible

       Defendant argues that the trial court abused its discretion by denying her request

for a mistrial after a detective testified that he compiled a photo lineup from jail photos.

She argues that the testimony constituted inadmissible evidence of other crimes in

violation of her right to be tried only for the offense charged.

       The decision to declare a mistrial is within the discretion of the trial court because

it is in the best position to determine whether the alleged incident had a prejudicial effect

on the jury. State v. Blurton, 484 S.W.3d 758, 779 (Mo. banc 2016). A trial court abuses

that discretion only when its ruling is “clearly against the logic of the circumstances

before it and . . . so arbitrary and unreasonable as to shock the appellate court’s sense of

justice and indicate a lack of careful consideration.” Id. Further, mistrial is a “drastic

remedy” and should only be employed in the most extraordinary circumstances, when

prejudice to the defendant cannot be removed in any other way. Id.

       Evidence of the commission of separate and distinct crimes is inadmissible unless

it has some legitimate tendency to establish the defendant’s guilt of the charged crime.

State v. McFadden, 369 S.W.3d 727, 741 (Mo. banc 2012). 5 Proffered evidence violates


5
  Such evidence has a legitimate tendency to directly establish guilt and is admissible if it tends
to establish: “(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme
or plan embracing the commission of two or more crimes so related to each other that proof of
one tends to establish the other; or (5) the identity of the person charged with commission of the
crime on trial.” McFadden, 369 S.W.3d at 741.
                                                7
this rule when the evidence shows that the defendant committed, was accused of, was

convicted of, or was definitely associated with the other crimes or misconduct. State v.

Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). Vague or speculative references to the

defendant’s involvement in other crimes do not constitute inadmissible evidence of the

commission of other crimes. Id.; State v. Sheridan, 486 S.W.3d 358, 362 (Mo. App.

2015). The defendant has the burden to show that the challenged testimony constituted

inadmissible evidence of other crimes. State v. Hawkins, 328 S.W.3d 799, 812 (Mo.

App. 2010).

      The detective testified as follows regarding a photo lineup shown to a witness:

      Q: And so you prepared a photo lineup in this case; right?
      A: That’s correct.
      Q: And you said it included [Defendant]?
      A: Yes, it did.
      Q: How do you typically prepare a photo lineup? Where do you draw photos
      from?
      A: I draw them either from jail photographs or through Department of
      Revenue driver’s license photos.
      Q: And in this case you pulled them from the Department of Revenue; isn’t
      that right?
      A: That’s true.
      Q: And how many photos did you pull?
      A: Six.
      Q: You mentioned that in a photo lineup you want the individuals to have
      similar features?
      A: Yes, they did.
      Q: Is there any sort of program that does that for you?
      A: I just essentially go through our jail system and locate the number of
      individuals that have similar characteristics to the one that I am looking for.
      Q: But from the Department of Revenue, you said these were pulled?
      A: These were pulled from the Department of Revenue. The initial—the
      initial information afforded to the photographs was drawn from previous jail
      photos.



                                            8
       Following the detective’s testimony, defense counsel requested a mistrial on

grounds that the detective’s testimony suggested that Defendant’s photo was a jail photo

which implied that she had committed other crimes. The trial court overruled the request

for mistrial. The prosecutor then offered the photo lineup into evidence and continued to

question the detective regarding Defendant’s photo. After the prosecutor established

which photo was Defendant’s, the prosecutor asked:

       Q: Now, did you pull that [photo of Defendant] from the Department of
       Revenue records?
       A: Yes, I did.
       Q: And all of these other photos, did you pull those from the Department of
       Revenue records?
       A: Yes, I did.

       Defendant failed to show that the detective’s testimony was evidence of the

commission of other crimes by Defendant. The detective repeatedly explained that he

obtained the photos, including Defendant’s, from Department of Revenue records. The

detective explained that he used the jail photo system to find other people with similar

characteristics to Defendant to fill out the rest of the lineup. The detective’s testimony

did not establish that Defendant’s photo was in the jail system or that he used the jail

system to find her photo. Moreover, an implication that the photograph may have

originally been taken by police does not “lead to the inference that the defendant has

committed prior crimes.” State v. Wright, 978 S.W.2d 495, 498-99 (Mo. App. 1998).

While testimony concerning the use of jail photos that discloses that a defendant has

committed other crimes is improper, when, as here, the photograph is discussed in the

context of identification and no testimony of prior crimes committed by Defendant was


                                              9
presented in connection with the photograph, the testimony is admissible. Id. The

detective’s testimony did not clearly associate Defendant with other crimes. The trial

court did not abuse its discretion by denying Defendant’s request for a mistrial.

                                       Conclusion

       The trial court’s judgment is affirmed in part and reversed in part. The case is

remanded to the trial court for proceedings consistent with this opinion.



All concur.




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