             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
 STATE OF MISSOURI,           )
                  Respondent, )
                              )
 v.                           )                WD78521
                              )
 CHARLES EDWARD BALDWIN,      )                FILED: January 10, 2017
 JR.,                         )
                   Appellant. )

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

     Before Division One: Anthony Rex Gabbert, P.J., and Thomas H. Newton
                              and Alok Ahuja, JJ.
      Following a jury trial in the Circuit Court of Cass County, Charles Baldwin

was convicted of three class C felonies: stealing; tampering with the victim of a

crime; and unlawful possession of a firearm.

      Baldwin appeals, challenging his convictions for stealing and victim

tampering. He argues that the evidence was insufficient to prove beyond a

reasonable doubt that he was guilty of victim tampering. He also contends that the

trial court erred in convicting him of felony stealing, in light of the Missouri

Supreme Court’s interpretation of the governing statute in State v. Bazell, 497

S.W.3d 263 (Mo. banc 2016).

      We reject Baldwin’s sufficiency challenge to the victim tampering conviction.

We conclude, however, that under Bazell Baldwin’s stealing offense constituted a
class A misdemeanor, not a class C felony. The classification of the stealing charge
as a misdemeanor has the effect of also reducing the classification of Baldwin’s

victim-tampering offense from a felony to a misdemeanor.      We accordingly reverse

both convictions, and remand the case to the trial court with instructions to enter a

judgment convicting Baldwin of the class A misdemeanors of stealing and victim

tampering, and to resentence him accordingly.

                                 Factual Background
      On Sunday, January 13, 2013, Ruby and Kevin Hobbs discovered that a

Jimenez .380 caliber handgun had been stolen from their home in Pleasant Hill.1

Ruby had purchased the handgun in December 2012 as a Christmas present for her

husband Kevin. Ruby purchased the firearm in her own name because Kevin is a

convicted felon, and therefore could not own or possess a firearm himself.

      January 13, 2013, was the Hobbses’ first wedding anniversary. Ruby and

Kevin were away from home for much of the day attending church and visiting with

friends. Ruby received a call from Baldwin that afternoon. Baldwin was in a

romantic relationship with Nicole Hobbs, Kevin’s daughter and Ruby’s

stepdaughter; Baldwin and Nicole were cohabiting and had a child together.

      Baldwin asked Ruby what she and Kevin were doing, and whether they were

at home. Ruby said that they were out, but would be home in a couple of hours; she
told Baldwin that he was welcome to visit then. Baldwin declined, saying that he

would come another time. Ruby testified that she was surprised to receive

Baldwin’s call, because he usually called Kevin, and had never called her directly in

the past.

      While Ruby and Kevin were away from home, their neighbor Mary Clevenger

heard a vehicle coming down the road playing loud music. Clevenger looked out of

her kitchen window and saw a dark-colored sport-utility vehicle pull into the

      1       Because Ruby, Kevin and Nicole Hobbs share the same surname, we refer to
them by their first names in this opinion. We intend no familiarity or disrespect.


                                              2
Hobbses’ driveway. (Clevenger’s description matched Baldwin’s vehicle.) Clevenger

saw a man exit the vehicle and walk up to the Hobbses’ front door. After standing

at the door for a moment the man walked around to the back of the house. At this

point Clevenger stopped watching. She testified that she did not see or hear the

man leave the property.

      After returning home on January 13, Ruby and Kevin noticed that there were

tire marks in the snow in their driveway, and footprints leading to the front door.

They also discovered a footprint between the main and screen doors at the back of

their house, and footprints on their back deck. The couple did not initially notice

anything in their home to be out of order. Later, however, they realized that their

.380 caliber Jimenez handgun was missing from the nightstand in their bedroom.

Ruby called Baldwin to ask if he had been to the house. He said that he had not.

Ruby then called the police to report what had happened, including the call from

Baldwin earlier in the day.

      Police arrested Baldwin in connection with the theft. Baldwin called Nicole

from a holding cell after his arrest. The phone call was recorded and was admitted

into evidence at trial. During the call Nicole stated that she did not know why Ruby

and Kevin would suspect Baldwin. He responded: “because I did it, baby.” Baldwin
asked Nicole to tell Kevin that if he “dropped the charges,” he would get his gun

back. Baldwin continued: “And tell him if he doesn’t drop the charges, he can kiss

good-bye of ever seeing his grandson.”

      Ruby testified that, after Baldwin was released from jail, he returned the gun

to her. He asked Ruby and Kevin to drop the charges, but Ruby responded that at

that point it was out of their hands.

      Baldwin testified at trial that he and Nicole were staying at the Hobbses’

house the weekend when the gun went missing. According to Baldwin, he, Nicole
and Kevin were using methamphetamine while Ruby was at work. Baldwin

                                              3
testified that he hid the gun under the bathroom sink because it made him feel

safer. He also testified that he and Nicole left the Hobbses’ residence around noon

on Sunday, January 13, but that he returned in the afternoon because Kevin asked

him to. Baldwin testified that nobody answered at either the front or the back door

when he returned, so he “took off” without entering the home. Baldwin denied

removing the gun from the Hobbses’ residence, but testified that, after he was

released from jail, he told Kevin where he had hidden the gun.

       Baldwin was charged with four class C felonies: second-degree burglary for

entering the home of Ruby Hobbs to steal a firearm, in violation of § 569.1702

(Count I); stealing a firearm owned by Ruby Hobbs, in violation of § 570.030 (Count

II); tampering with Kevin Hobbs, a victim of burglary and stealing, in violation of

§ 575.270 (Count III)); and unlawful possession of a firearm by a convicted felon, in

violation of § 571.070 (Count IV). Count III alleged that Baldwin had attempted to

tamper with Kevin by instructing Nicole during their recorded jailhouse

conversation to advise Kevin that if he dropped the charges he would get his gun

back, but that if he did not, Kevin would not be allowed to see his grandson in the

future. The information alleged that Baldwin was a persistent offender based on

his convictions in September 2006 of unlawful use of a weapon and possession of a
controlled substance with intent to distribute.

       After a two-day trial, a jury found Baldwin guilty of stealing a firearm,

tampering with a victim, and being a felon in possession of a handgun. The jury

acquitted Baldwin of the burglary charge. The court sentenced him to five-year

terms of imprisonment for each of the three convictions, with the sentences to run

concurrently.



      2      Statutory citations refer to the 2000 edition of the Revised Statutes of
Missouri, updated through the 2012 Cumulative Supplement.


                                                 4
      Baldwin now appeals, challenging his convictions for stealing and victim

tampering.

                                      Discussion
                                           I.
      Baldwin’s first Point contends that the State failed to present sufficient

evidence to prove beyond a reasonable doubt that Kevin Hobbs was a victim of

either burglary or stealing, and that Baldwin’s conviction of victim tampering must

accordingly be reversed.

             When reviewing a challenge to the sufficiency of the evidence,
      the standard of review is whether there is sufficient evidence from
      which a reasonable juror might have found the defendant guilty
      beyond a reasonable doubt. The evidence and all reasonable inferences
      therefrom are viewed in the light most favorable to the verdict,
      disregarding any evidence and inferences contrary to the verdict. This
      is not an assessment of whether the Court believes that the evidence at
      trial established guilt beyond a reasonable doubt but rather a question
      of whether, in light of the evidence most favorable to the State, any
      rational fact-finder could have found the essential elements of the
      crime beyond a reasonable doubt.
State v. Jones, 479 S.W.3d 100, 105 (Mo. banc 2016) (citations and internal
quotation marks omitted). To the extent Baldwin’s sufficiency claim raises issues of

statutory interpretation, we review such legal questions de novo. State v. Meyers,

333 S.W.3d 39, 46-47 (Mo. App. W.D. 2010).

      The victim tampering statute, § 575.270.2, provides in relevant part:
            A person commits the crime of “victim tampering” if, with
      purpose to do so, he prevents or dissuades or attempts to prevent or
      dissuade any person who has been a victim of any crime or a person
      who is acting on behalf of any such victim from:
              (1)    Making any report of such victimization to any peace
      officer, or state, local or federal law enforcement officer, or prosecuting
      agency or to any judge;
            (2)   Causing a complaint, indictment or information to be
      sought and prosecuted or assisting in the prosecution thereof;
            (3)   Arresting or causing or seeking the arrest of any person in
      connection with such victimization.

                                                5
       In order to convict a defendant of victim tampering, the evidence must be

sufficient for the jury to find “that the object of the tampering is ‘a victim of any

crime.’” State v. Owens, 270 S.W.3d 533, 537 (Mo. App. W.D. 2008). In Owens, the

accused was charged with tampering with the victim of statutory sodomy. The jury

acquitted the defendant of the underlying statutory sodomy charge, but

nevertheless convicted him of victim tampering. Id. at 536. We held that the

defendant’s “conviction for attempted victim tampering cannot survive his acquittal

for statutory sodomy,” and reversed the victim-tampering conviction. Id. at 544.

       Under Owens, Baldwin’s victim-tampering conviction cannot be sustained on

the basis that Kevin Hobbs was the victim of burglary, because the jury acquitted

Baldwin of the burglary charge.

       Baldwin argues that Kevin Hobbs could not be a “victim” of the stealing

offense either. Baldwin emphasizes that Kevin was a convicted felon who could not

lawfully own or possess the gun. According to Baldwin, Kevin could not be a victim

of stealing if he had no legal right to own or possess the stolen item. We disagree.

       “A person commits the crime of stealing if he or she appropriates property or

services of another with the purpose to deprive him or her thereof, either without

his or her consent or by means of deceit or coercion.” § 570.030.1. Section
570.010(11) provides that the phrase “of another” includes “a possessory or

proprietary interest” in property.

       Missouri courts have repeatedly held that a stealing or larceny conviction can

be supported by evidence that the defendant took property from someone who

possessed it, even if the victim did not own or hold legal title to the stolen property.3



       3      See, e.g., State v. Webb, 400 S.W.2d 84, 86 (Mo. 1966); State v. Nicoletti, 125
S.W.2d 33, 36 (Mo. 1939); State v. Flowers, 278 S.W. 1040, 1043 (Mo. 1925); State v. Brown,
737 S.W.2d 496, 496-97 (Mo. App. E.D. 1987); State v. Smith, 684 S.W.2d 576, 579 (Mo.
App. S.D. 1984); State v. Hill, 528 S.W.2d 798, 801 (Mo. App. 1975).


                                                 6
These cases use terms like “rightful possession,”4 “lawful possession,”5 and “lawful

custody and control”6 to describe the types of possessory interests which a victim

must hold to support a stealing conviction. Baldwin seizes on the references to

“lawful” or “rightful” possession in these cases, and argues that Kevin Hobbs could

not be a “lawful” or “rightful” possessor of the handgun, when he was prohibited by

law from owning or possessing it.

       We are unpersuaded. First, the references to “rightful” or “lawful” possession

have their genesis in decisions which predate the adoption of Missouri’s Criminal

Code in 1977. The Code for the first time expressly defined the phrase “of another.”

The definition enacted in 1977 provides that “a possessory . . . interest” is sufficient

to support a stealing conviction, § 570.010(11); it does not require that the

possessory interest be “rightful” or “lawful.”

       Second, the references to “rightful” or “lawful” possession in the cited cases

are dicta. The issue in those cases was whether property could be stolen from

someone who merely possessed it, but was not the property’s owner; the decisions

hold that possession of property, even without ownership, is sufficient to support a

conviction of stealing or larceny. The outcome in none of those cases depended,

however, on whether the possession was – or was not – “rightful” or “lawful.”
       When the necessity of “rightful” or “lawful” possession was actually at issue,

the Eastern District of this Court held that Missouri law imposes no such

requirement. In State v. Jordan, 404 S.W.3d 292 (Mo. App. E.D. 2012), the

defendant was convicted of robbery for forcibly stealing illegal drugs. On appeal, he

        4      Webb, 400 S.W.2d at 86 (“the ownership may be charged to be either in the
one rightfully in possession or the actual owner” (emphasis added)); Nicoletti, 125 S.W.2d at
36 (“In a larceny indictment the ownership of the stolen property may be charged . . . in one
who was rightfully in possession as special owner, as, for example, consignee, carrier, or the
like” (emphasis added)).
       5      Brown, 737 S.W.2d at 496-97.
       6      Smith, 684 S.W.2d at 579; Hill, 528 S.W.2d at 801.


                                                 7
argued that “illegal drugs cannot support a conviction for robbery under Missouri

law because stolen property must be lawfully possessed.” Id. at 299 (internal

quotation marks omitted). The Eastern District rejected this argument. Id. Citing

§§ 570.010 and 570.030, the Court held that it was sufficient that the victim “had a

possessory interest in the drugs”; “under Missouri law, illegal drugs can be ‘forcibly

stolen’ to support a robbery conviction.” Id. at 300; see also State v. Doss, 394

S.W.3d 486, 492 n. 8 (Mo. App. W.D. 2013) (dictum; noting that defendant’s

admission to stealing marijuana would have supported a robbery conviction).

      As in Jordan, Kevin Hobbs had a sufficient possessory interest in the stolen

handgun to make him a victim of the theft, even though he could not lawfully

possess the firearm due to his prior felony conviction.

      It is irrelevant that the stealing count in the information (Count II) charged

Baldwin with stealing a firearm “which was owned by Ruby Hobbs . . . without the

consent of Ruby Hobbs and with the purpose to deprive her thereof.” Missouri law

plainly contemplates that there may be multiple victims to a stealing offense: the

property’s owner or owners, but also those non-owners who are in possession of the

property. The fact that the information alleged that Ruby was a victim of the theft,

because of her ownership of the gun, is consistent with the conclusion that Kevin
was also a victim, because he possessed the firearm.

      Point I is denied.

                                          II.
      Baldwin’s second Point argues that the trial court erred in convicting him of

the class C felony of stealing. According to Baldwin, the Missouri Supreme Court’s

decision in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), requires that this

offense be classified as a class A misdemeanor. We agree.

      Section 570.030 provides in relevant part:



                                                8
            1.    A person commits the crime of stealing if he or she
      appropriates property or services of another with the purpose to
      deprive him or her thereof, either without his or her consent or by
      means of deceit or coercion.
             ...
             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:
                    ...
                    (3)   The property appropriated consists of:
                          ...
                          (d)    Any firearms.
             ...
             10.    Any violation of this section for which no other penalty is
      specified in this section is a class A misdemeanor.
      After Baldwin’s trial and conviction, the Missouri Supreme Court interpreted

these statutory provisions in Bazell. The defendant in Bazell was convicted of two

separate counts of stealing firearms. As here, the trial court characterized the two

stealing offenses as class C felonies in reliance on § 570.030.3(3)(d). On appeal, the

Supreme Court held that the enhancement provisions in § 570.030.3 did not apply

to the offense of stealing defined in § 570.030.1. The Court explained:

      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.
497 S.W.3d at 266. The court concluded that stealing a firearm must be classified

as a class A misdemeanor. Id. at 267.

      In light of the Supreme Court’s interpretation of § 570.030.3 in Bazell,

Baldwin requests that his conviction for felony stealing be reversed, and that the
case be remanded to the circuit court for entry of a conviction, and resentencing, for


                                              9
misdemeanor stealing. The State concedes that Baldwin’s stealing conviction is

subject to the holding in Bazell, and agrees that this case should be remanded to the

circuit court for entry of a judgment convicting him of a class A misdemeanor, and

for resentencing accordingly.

      Where the facts found by a jury fail to support conviction of a greater offense,

but are sufficient to support a defendant’s conviction of a lesser offense, we have the

authority to order entry of a conviction of the lesser offense. See, e.g., State v. Blair,

443 S.W.3d 677, 684 (Mo. App. W.D. 2014). That relief is warranted in this case. In

convicting Baldwin of felony stealing, the jury necessarily found that he had

committed each of the elements of class A misdemeanor stealing (in addition to

finding that the stolen property consisted of a firearm, a fact which is now legally

irrelevant). Baldwin does not challenge the sufficiency of the evidence to support a

conviction of class A misdemeanor stealing, and in fact invites entry of a

misdemeanor conviction. Bazell, which was decided after Baldwin’s trial, rejected

the prevailing interpretation of the stealing statute. In these circumstances, entry

of a conviction for the class A misdemeanor is justified.

      Reversal of Baldwin’s felony stealing conviction also affects his conviction of

victim tampering. Baldwin was convicted of, and sentenced for, the class C felony of
victim tampering. Under § 575.270.3, “victim tampering is a class C felony if the

original charge is a felony. Otherwise, tampering with a witness or victim
tampering is a class A misdemeanor.” (Emphasis added.) As explained above,

Kevin Hobbs was the victim of misdemeanor – not felony – stealing. Therefore, the

victim-tampering offense is likewise a class A misdemeanor, and reversal of

Baldwin’s conviction of felony victim tampering is required. We direct the circuit

court on remand to enter a conviction of, and resentence Baldwin for, class A

misdemeanor victim tampering.
      Point II is granted.

                                               10
                                      Conclusion
      We reverse the trial court’s judgment convicting Baldwin of the class C

felonies of stealing and victim tampering. We remand the case to the circuit court

with instructions to enter a judgment convicting Baldwin of class A misdemeanor

stealing and victim tampering, and to resentence Baldwin accordingly. Baldwin did

not challenge his conviction for unlawful possession of a firearm in this appeal;

nothing in our opinion affects Baldwin’s conviction or sentence for that offense.




                                              Alok Ahuja, Judge
All concur.




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