            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT
 STATE OF MISSOURI,            )
                 Respondent, )
                               )
 v.                            )                 WD81099
                               )
 LONNIE VANDELL MITCHELL,      )                 FILED: April 30, 2019
                    Appellant. )
                Appeal from the Circuit Court of Jackson County
                    The Honorable Sandra Midkiff, Judge
              Before Division Two: Edward R. Ardini, Jr., P.J., and
                       Alok Ahuja and Gary D. Witt, JJ.
       After a jury trial in the Circuit Court of Jackson County, Lonnie Mitchell was

found guilty of property damage in the first degree, in violation of § 569.100,1 and

animal abuse, in violation of § 578.012. The charges stemmed from an incident in

which Mitchell damaged a home that he rented together with his girlfriend and her

four children, as well as personal property belonging to Girlfriend2 and her children.

Mitchell appeals, challenging only his conviction for first-degree property damage.

He argues that the circuit court erred by failing to instruct the jury that it had to

find that Mitchell did not act under a “claim of right.” Because we conclude that

Mitchell did not present sufficient evidence to inject the claim of right issue into the

case, we affirm.


       1      Unless otherwise indicated, all statutory citations refer to the 2000 edition of
the Revised Statutes of Missouri, updated through the 2015 noncumulative supplement.
       2       We refer to Mitchell’s victim using the generic term “Girlfriend” in order to
protect her privacy. See § 595.226.1, RSMo 2016.
                                Factual Background3
       In 2016, Mitchell and Girlfriend had been in a romantic relationship for eight

years. Girlfriend had four children; Mitchell was the father of the youngest two.

       On June 3, 2016, Girlfriend and Mitchell entered into a Residential Lease

with Option to Purchase Agreement for a house at 5509 Woodland Avenue in

Kansas City. The Agreement provided that Mitchell and Girlfriend would lease the

house for a term of 60 months and 28 days, with a monthly rental of $450.00. The

Agreement included an option for Girlfriend and Mitchell to purchase the house for

$34,900. Girlfriend and Mitchell paid $750.00 as consideration for the purchase

option.

       The home’s lessor had acquired the property in foreclosure, and it was not in

habitable condition at the time Girlfriend and Mitchell entered into the Lease

Agreement. As part of the Agreement, Girlfriend and Mitchell were required to

bring the house into habitable condition within ninety days of taking possession.

Girlfriend installed plumbing, a hot water heater, kitchen appliances, and a

bathroom sink. Girlfriend paid for the fixtures and did most of the work installing

them, but Mitchell provided some assistance. After the new appliances and fixtures

were installed and in working order, Girlfriend and her four children moved into the

house. They brought their personal property into the house, including clothing,

furniture, and televisions and other electronics. Mitchell also stayed at the house,

and maintained some personal property at the house, although he also had another

residence.

       On the morning of June 30, 2016, Mitchell woke Girlfriend and accused her of

cheating on him. After arguing with Mitchell for thirty minutes, Girlfriend left the

house with her children, and went to her mother’s house. While at her mother’s


       3     Because Mitchell does not challenge his conviction for animal abuse in this
appeal, we have omitted the facts relevant only to that offense.


                                            2
house, Girlfriend received a text message from Mitchell stating that they “didn’t

have a house” and that they had lost the house.

      When Girlfriend returned to the house later that afternoon, she found that

the front door’s locking mechanism was destroyed. In the front room, the screen of

a big-screen television was smashed, a glass coffee table was shattered, and a DVD

player had been thrown across the room. Girlfriend’s clothes were scattered around

the front room, covered in motor oil.

      In the children’s room, the bed was cut open and a DVD player had been used

to smash the screen of a television. The door to the children’s room had been ripped

off of its hinges. In Girlfriend’s bedroom the mattress had been shredded, and a

small refrigerator destroyed. Both rooms had gouges in the walls. The bathroom

sink was shattered and the toilet was ripped out of the floor and broken into pieces.

      In the kitchen, the table and stools had holes in them. The front of the stove

had been broken, along with a coffee maker. In the basement, the water heater had

been punctured and the plumbing lines cut down. One of the furnace vents had also

been cut. Throughout the house, rocks had been thrown through twelve double-

paned windows.

      Girlfriend testified that, up to the date of trial, she had spent approximately
$2,500 repairing and replacing damaged property.

      On July 2, 2016, a detective interviewed Mitchell. During the interview, he

admitted to damaging the property. He stated that he and Girlfriend had

purchased the house together, and that the property in the house which he

damaged was his. Before trial Mitchell wrote a letter to the judge, which similarly

claimed that he and Girlfriend were purchasing the house, and that he was on a

mortgage for the house.

      Mitchell was charged with property damage in the first degree and animal
abuse. At trial, Mitchell requested that the jury be instructed on the property-


                                          3
damage charge that it had to find that he did not act under the reasonable belief

that he had the right to damage the home and its contents. The court refused to

instruct on the claim of right issue, because § 569.130.3 prohibits a tenant from

asserting a claim of right with respect to damage to leased property.

      The jury found Mitchell guilty of property damage in the first degree and

animal abuse. The circuit court sentenced him to consecutive sentences of four

years’ imprisonment for each offense.

      Mitchell appeals.

                                        Analysis
      In his sole Point on appeal, Mitchell argues that he sufficiently injected the

issue of claim of right at trial, and that the circuit court accordingly erred by

refusing to include language concerning the claim of right issue in the verdict

director for the property damage offense.

            In determining whether a defendant is entitled to an instruction
      refused by the trial court, we review the evidence in the light most
      favorable to the defendant. Generally, the defendant is entitled to any
      instruction supported by the evidence.
State v. McPike, 514 S.W.3d 86, 88 (Mo. App. E.D. 2017) (citations omitted); see also,

e.g., State v. Umbertino, 489 S.W.3d 855, 858 (Mo. App. E.D. 2016).
      Section 569.100 provides that “[a] person commits the crime of property

damage in the first degree if such person . . . [k]nowingly damages property of

another to an extent exceeding seven hundred fifty dollars.” Section 569.130.1

provides that “[a] person does not commit an offense by damaging . . . property of

another if he or she does so under a claim of right and has reasonable grounds to

believe he or she has such a right.” See State v. Green, 643 S.W.2d 1, 2 (Mo. App.

E.D. 1982).

      The burden of injecting the issue of a claim of right is on the defendant.
§ 569.130.2.


                                            4
      The Missouri property damage statute allocates to defendants the
      single burden of coming forward with some evidence concerning a
      reasonable explanation for their conduct, i.e. a reasonably held claim of
      right. Once the defendant produces such evidence, the state retains
      the burden of persuading the trier of fact beyond a reasonable doubt
      that no such right existed.
Green, 643 S.W.2d at 2; see also MAI-CR3d 323.70, Note on Use 3 (describing the

required modification of the verdict director for first-degree property damage where

the defendant has presented evidence sufficient to inject the claim of right issue into

a case); MAI-CR3d 323.72, Note on Use 3 (same for second-degree property

damage).

      This issue is not submitted to the trier of fact, however, unless it is
      supported by evidence. To support the submission of an instruction on
      a claim of right, “it was not sufficient that defendant believed that he
      had a right . . . . Evidence of reasonable grounds for that belief was
      also required.”
State v. Lynch, 356 S.W.3d 810, 812 (Mo. App. S.D. 2012) (quoting State v. Cox, 741

S.W.2d 74, 77 (Mo. App. S.D. 1987)).

      Because a defendant must present evidence not only of his subjective belief of

a right to damage property, but also of reasonable grounds for that belief, “[t]he

burden [of injecting the claim of right issue] is not met by self-serving statements of

the defendant.” State v. Eidson, 701 S.W.2d 549, 552 (Mo. App. E.D. 1985)
(citations omitted). “‘The naked assertion of an honest belief in a legal right,

unsupported by any evidence of facts or circumstances from which such a belief

might reasonably be inferred, is insufficient to raise the issue.’” State v. Umbertino,

489 S.W.3d 855, 858 (Mo. App. E.D. 2016) (quoting State v. Smith, 684 S.W.2d 576,

580 (Mo. App. S.D. 1984)).

      Mitchell contends that he adequately injected the claim of right issue in this

case, “because a reasonable juror could have found from the evidence that Mr.

Mitchell acted under the reasonable belief that he owned the real property and the
items inside.” He relies on the Residential Lease with Option to Purchase


                                           5
Agreement to establish reasonable grounds for his belief that he owned the property

he damaged, and therefore had the right to deal with that property as he chose.

         As an initial matter, the Lease Agreement affords Mitchell no ownership

rights with respect to the personal property of Girlfriend and her children—

including clothing—which he damaged. Mitchell has identified no basis for a

reasonable belief that he had the right to damage that personal property.

         The Lease Agreement does not grant Mitchell an ownership interest in the

real property, either. The Lease Agreement is just that—an agreement to lease real

property belonging to another, for a specified term, for a specified rental. The

Agreement repeatedly refers to itself as a “lease,” repeatedly refers to the obligation

of Mitchell and Girlfriend to pay “rent,” and repeatedly refers to the parties as

“Lessor” and “Lessee” or “Landlord” and “Tenant.” The Lease Agreement specifies

that part of Mitchell and Girlfriend’s monthly rental payment would be used to

purchase “Renter’s Insurance.” The Agreement gives the Lessor the right to “evict”

Mitchell and Girlfriend from the premises if they default in their payment of rent.

The Lease Agreement also specifically prohibits Mitchell and Girlfriend from

causing any permanent damage to the leased property: it states that “LESSEE(s)

shall maintain the Premises and will not cause or permit any waste or damage
other than normal wear and tear.”

         In 2014, the General Assembly amended § 569.130 by adding subsection (3),

which specifies that “[n]o person who, as a tenant, willfully or wantonly destroys,

defaces, damages, impairs, or removes any part of a leased structure or dwelling

unit, or the facilities, equipment, or appurtenances thereof, may inject the issue of

claim of right.” § 569.130.3. Under the unambiguous provisions of the Lease

Agreement to which he was a party, Mitchell was a tenant in the premises he

damaged, and was therefore prohibited by § 569.130.3 from asserting a claim of
right.


                                           6
      Mitchell argues that he had a reasonable belief that he was purchasing, and

therefore owned, the leased premises, by virtue of the option to purchase that was

granted to Mitchell and Girlfriend in the Lease Agreement. We disagree. The

Lease Agreement clearly provides that Mitchell and Girlfriend merely had an option

to purchase the leased premises, which they could choose to exercise by taking

further action beyond merely maintaining the property, and paying rent. The

Agreement did not itself constitute a purchase contract, however, and it clearly did

not give Mitchell an ownership interest in the property. The Agreement provided

that the purchase price of the home was $34,900.00. The Agreement provided that,

of the $450.00 monthly rental, “SIXTY DOLLARS AND NO CENTS ($60.00) . . .

shall be credited toward the purchase price of the premises . . ., and shall be

considered as non-refundable escrow towards the PURCHASE PRICE.”

      Although part of the Mitchell and Girlfriend’s monthly payments was deemed

to be an “escrow” against the purchase price, the Agreement made clear that

Mitchell and Girlfriend would have to “choose to exercise their rights to purchase”

before the lease term expired. The Agreement specified three alternatives from

which Mitchell and Girlfriend could choose at the conclusion of the lease term.

First, they would have the “option to convert to seller financing,” at the conclusion
of the lease term (or at an earlier time, if they had paid at least 30% of the purchase

price). The Agreement provided that “[t]his conversion shall be documented by a

separate instrument.” The Lessor agreed in the Lease Agreement that, if Mitchell

and Girlfriend were unable to secure conventional financing at the conclusion of the

lease term, the Lessor would provide twenty-five-year financing at an 11.75%

annual interest rate.

      Second, the Agreement provided that, at any time during the lease term,

Mitchell and Girlfriend could tender the outstanding balance of the purchase price




                                           7
in a “cash sale.” As with the seller-financing option, the Agreement provided that

“[t]his CASH SALE shall be documented by a separate instrument.”

      Finally, the Agreement gave Mitchell and Girlfriend the option to “choose to

forfeit their rights to the premises described herein and vacate the premises and all

appurtenances within FIVE (5) days of the determined expiration of the

agreement.” If Mitchell and Girlfriend failed to vacate the premises within five

days, the Agreement provided that “LESSOR shall have the right to evict

LESSEE(s) according to the proper judicial process.” Significantly, the Agreement

also provided that Mitchell and Girlfriend would be responsible for damage to the

property if they chose to vacate the premises:

            LESSEE(s) agree that upon the execution of OPTION 3 (above),
      LESSEE(s) shall vacate premises in the same condition or better as of
      the execution of this agreement. LESSEE(s) acknowledge that should
      they vacate the premises in worse condition than at the time of
      execution of this agreement, any and all appropriate legal action may
      be sought by LESSOR for restitution including but not limited to the
      recovery of all actual legal fees incurred by the LESSOR.
      The mere fact that Mitchell and Girlfriend possessed an option to purchase

the damaged property—if they took certain additional actions in the future—did not

make them owners of that property, or give them legally enforceable rights with

respect to that property.

      [A]n option is merely a continuing and irrevocable offer that the seller
      cannot withdraw during a stated period. The option vests the buyer
      with a power of acceptance and, when the buyer accepts the offer in the
      prescribed manner, the option is deemed to have been exercised so as
      to create a binding bilateral contract. The bilateral contract is
      specifically enforceable. However, until the buyer accepts, there is no
      enforceable contract.
Riddle, ex rel. Riddle v. Elk Creek Salers, Ltd., 52 S.W.3d 644, 646–47 (Mo. App.

S.D. 2001) (footnote omitted) (citing HGS Homes v. Kelly Residential Grp., 948

S.W.2d 251, 255 (Mo. App. E.D. 1997)); see also Hendricks v. Northcutt, 820 S.W.2d
689, 692 (Mo. App. S.D. 1991). “Acceptance of an option cannot be made in some


                                          8
manner contrary to the method provided in the agreement. Rather, an optionee

must exercise the option in strict accordance with its expressly stated terms and

conditions.” Deal v. Consumers Programs, Inc., 470 F.3d 1225, 1232 (8th Cir. 2006)

(Missouri law; citations and internal quotation marks omitted).

       Until they actually exercised the purchase option in the manner specified in

the Agreement, Mitchell and Girlfriend acquired no ownership rights in the

property. In Riddle, 52 S.W.3d 644, the Southern District addressed the financial

consequences of damage to real property which is subject to a purchase option. The

Court recognized that, after an option is exercised, the option-holder is entitled to

abatement of a portion of the purchase price due to property damage. Id. at 646.

Such a price reduction is allowed on the theory that, once the option is exercised,

the option-holder acquires beneficial ownership rights in the property: “[e]ven

though closing has not taken place, equitable conversion treats the seller as trustee

of the property held for the buyer.” Id. This principle is inapplicable, however, if

property is damaged before the exercise of a purchase option, because the option-

holder “acquire[s] no interest in [the] real property, or any building thereon, until

[the option-holder] exercise[s] its option to purchase . . . .” Id. at 647.

       In this case, Mitchell failed to introduce evidence that he or Girlfriend
exercised their option to purchase the house in either of the ways specified in the

Lease Agreement: by entering a separate agreement for seller financing; or by

tendering the purchase price and entering a separate agreement for a cash

purchase. Because they had not exercised the option, they “acquired no interest in

[the] real property, or any building thereon . . . .” Riddle, 52 S.W.3d at 647. The

Lease Agreement does not provide any reasonable ground for Mitchell’s subjective

belief that he owned or was purchasing the house, and therefore had the right to

damage or destroy it. To the contrary, the Lease Agreement makes clear that
Mitchell remained a tenant on the property with an obligation to make monthly


                                             9
rental payments. Mitchell was subject to eviction if he failed to pay the monthly

rent; was subject to a contractual requirement that he “not cause or permit any

waste or damage [to the property] other than normal wear and tear”; and would be

subject to “appropriate legal action” if he “vacate[d] the premises in worse condition

than at the time” the Lease Agreement was executed.

       Because he failed to present evidence to suggest that he had a reasonable

ground for a belief that he owned the property, Mitchell was not entitled to an

instruction on the claim of right issue, even though he presented evidence of his

own subjective belief that he acted within his rights. See State v. Lynch, 356 S.W.3d

810, 812 (Mo. App. S.D. 2012) (despite evidence that defendant believed he was

justified in damaging third party’s property due to third party’s inappropriate

relationship with defendant’s disabled child, the circuit court properly refused to

instruct on claim of right where “there was no evidence here that Defendant had

title to, color of title to, or any belief, reasonable or otherwise, that he had any legal

right by ownership, consent, or other legal process to damage the vehicle in

question”); State v. Cox, 741 S.W.2d 74, 77 (Mo. App. S.D. 1987) (holding that circuit

court properly refused to instruct jury on claim of right issue despite defendant’s

subjective belief in his claim of right, where the defendant “did not introduce any
evidence, by deed or otherwise, showing that he held legal title, or even color of title,

to that portion of the road which he admittedly damaged”).

                                      Conclusion
       The judgment of the circuit court is affirmed.




                                                 ___________________________________
                                                 Alok Ahuja, Judge
All concur.




                                            10
