         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
STATE OF MISSOURI,                             )
                                               )
               Respondent,                     )
                                               )
vs.                                            )      WD77159
                                               )
AMANDA N. BAZELL,                              )      Opinion filed: July 21, 2015
                                               )
               Appellant.                      )


        APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY, MISSOURI
               THE HONORABLE R. MICHAEL WAGNER, JUDGE

                   Before Division Two: Thomas H. Newton, Presiding Judge,
                      Victor C. Howard, Judge and Mark D. Pfeiffer, Judge


       Amanda Bazell appeals her convictions and sentences following a jury trial for burglary

in the first degree, section 569.160, RSMo 2000, two counts of stealing firearms, one count of

stealing over $500, and one count of stealing under $500, section 570.030, RSMo Cum. Supp.

2013. She contends that the trial court abused its discretion in denying her request for a mistrial

after a detective testified that he compiled a photo lineup from jail photos. Bazell also argues

that the trial court plainly erred in accepting the jury’s verdict for two counts of stealing firearms

and in sentencing her for both counts in violation of her right to be free from double jeopardy.

Bazell’s convictions and sentences for first-degree burglary, one count stealing firearms, stealing
property over $500, and stealing property under $500 are affirmed. Her conviction and sentence

for one count of stealing firearms is reversed.

                                           Background

        Bazell does not challenge the sufficiency of the evidence. The evidence, viewed in the

light most favorable to the verdict, established that on Sunday morning, March 10, 2013, Bazell

broke into the home of Phillip and Nancy Connaughton in Garden City, after the Connaughtons

had left for church, and stole a Berretta Elite .40 caliber pistol, a Ruger .22 caliber rifle, and a

laptop, jewelry box, suitcase, and two pairs of tennis shoes. Later in the morning, Bazell broke

into the home of Mark and Veronica Stout in Pleasant Hill. Mrs. Stout was at church at the time,

and Mr. Stout was sleeping in his bedroom. Mr. Stout woke when he heard his back door creak

open and confronted Bazell in the dining room. Bazell said she was looking for Ashley to drop

something off, and Mr. Stout said she had the wrong house. Mr. Stout continued to question

Bazell as she headed back to her car. Mr. Stout got the license plate number on the car and

called the police after Bazell left. Bazell stole three rings with a value of $8000 from the Stouts’

home.

        Bazell was charged as a prior and persistent offender with two counts of first-degree

burglary, three counts of felony stealing, and one count of misdemeanor stealing. The jury

returned guilty verdicts for one count of first-degree burglary and all of the stealing counts. It

was deadlocked on the remaining burglary count for the burglary of the Connaughton home, and

the trial court declared a mistrial as to that count. The State subsequently dismissed that count

nolle prosequi.    The trial court sentenced Bazell to concurrent terms of twelve years

imprisonment for the burglary, stealing firearms, and stealing over $500 convictions and one

year in the county jail for the stealing under $500 conviction. This appeal by Bazell followed.



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                                           Photo Lineup

       In her first point on appeal, Bazell claims that the trial court abused its discretion in

denying her request for mistrial after a detective testified that he compiled a photo lineup from

jail photos. She argues that the testimony constituted evidence of other crimes and violated her

right to be tried only for the offense charged and destroyed the presumption of innocence.

       A mistrial is a drastic remedy reserved for the most extraordinary circumstances, and the

decision whether to grant one is left to the trial court’s sound discretion. State v. Shaffer, 439

S.W.3d 796, 801 (Mo. App. W.D. 2014). “A mistrial should only be granted when the prejudice

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

       Generally, evidence of the commission of separate and distinct crimes is not admissible

unless it has some legitimate tendency to directly establish the defendant’s guilt of the charged

crime. State v. McFadden, 369 S.W.3d 727, 741 (Mo. banc 2012). Evidence of other crimes,

when not properly related to the cause on trial, violates a defendant’s right to be tried only for the

offense charged. State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008). But vague or

speculative references to the defendant’s involvement in other crimes do not violate this right.

State v. Taborn, 412 S.W.3d 466, 473 (Mo. App. W.D. 2013). To violate the rule against the

admission of evidence of other crimes, the evidence must show that the defendant committed,

was accused of, was convicted of, or was definitely associated with the other crimes or

misconduct. Id. Vague references are not clear evidence associating a defendant with other

crimes. Id. The defendant has the burden to show that the challenged testimony constituted

evidence of other crimes.      State v. Clark, 112 S.W.3d 95, 100 (Mo. App. W.D. 2003).

Testimony concerning the use of a mug shot that discloses information that a defendant has

committed other crimes is improper. State v. Wright, 978 S.W.2d 495, 498 (Mo. App. W.D.



                                                  3
1998)(it is the defendant’s burden to show that the use of the term “mugshot” constituted

evidence of prior crimes).

       Regarding a photo lineup shown to a witness in this case, a detective testified as follows:

       Q: And so you prepared a photo lineup in this case; right?

       A: That’s correct.

       Q: And you said it included Amanda Bazell?

       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.




                                                4
Soon thereafter, defense counsel requested a mistrial arguing that the detective testified that the

photo shown of the defendant was a jail photo, which suggested other crimes. The trial court

denied the request. The prosecutor then offered the photo lineup into evidence and continued to

question the detective about it:

       Q: [I]s that a fair and accurate depiction of the lineup that you showed to her? Is
       this the actual copy of it?

       A: Yes, that’s it.

       Q: And is one of these photos Amanda Bazell?

       A: Yes, it is.

       Q: And if you flip through here, which photo is the photo of her?

       A: Photo Number 3.

       Q: I am looking at here what is marked as Photo Number 1; is that right?

       A: Yes.

       Q: Here we have Photo Number 2.

       A: Yes.

       Q: Photo Number 3 and that is the photo that you pulled of Amanda Bazell.

       A: Yes, it is.

       Q: Now, did you pull that 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.

       Bazell failed to show that the detective’s testimony was evidence of other crimes. The

detective repeatedly explained that he obtained Bazell’s and all of the photos in the photo lineup



                                                5
from the Department of Revenue records. While he explained that he used the jail photo system

to find other people with similar characteristics to Bazell to fill out the rest of the lineup, his

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

system to find her photo. The detective’s testimony did not show that Bazell committed, was

accused of, was convicted of, or was definitely associated with other crimes or misconduct. The

vague references to the jail photo system did not clearly associate Bazell with other crimes. The

trial court did not err in denying Bazell’s request for a mistrial. Point denied.

                                         Double Jeopardy

       In her next point on appeal, Bazell contends that the trial court plainly erred in accepting

the jury’s verdict for two counts of stealing firearms and in sentencing her for both counts in

violation of her right to be free from double jeopardy. She contends that under the charging

statute, section 570.030.3, stealing two firearms in the course of one burglary constitutes a single

offense.

       Bazell concedes that she failed to raise her double jeopardy claim in the trial court and

requests plain error review. Generally, a constitutional issue must be raised at the earliest

opportunity to be preserved for appellate review. State v. Liberty, 370 S.W.3d 537, 546 (Mo.

banc 2012). However, “the 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.’” Id. (quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974), overruled on

other grounds by Bordenkircher v. Hayes, 434 U.S. 357 (1978)). Thus, 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.




                                                  6
       “The double jeopardy clause protects a defendant both from successive prosecution for

the same offense and from multiple punishments for the same offense.” State v. Roggenbuck,

387 S.W.3d 376, 381 (Mo. banc 2012). Bazell argues that her two convictions for stealing two

different firearms from the same house constitute multiple punishments for one offense. Double

jeopardy analysis regarding multiple punishments is limited to determining whether cumulative

punishments were intended by the legislature.      Id.; Liberty, 370 S.W.3d at 546-47.       “To

determine whether the legislature intended multiple punishments, a court looks first to the ‘unit

of prosecution’ allowed by the statutes under which the defendant was charged.” Liberty, 370

S.W.3d at 547 (internal quotes and citation omitted).        If the charging statute does not

unambiguously express the permissible unit of prosecution, the rule of lenity resolves doubts

about the intended unit in favor of the defendant.      Id. “But the rule of lenity applies to

interpretation of statutes only if, after seizing everything from which aid can be derived, the

court can make no more than a guess as to what the legislature intended.” Id. (internal quotes

and citation omitted).

       A person commits the crime of stealing if “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. Stealing is a class C felony if “[t]he property

appropriated consists of…[a]ny firearms.” § 570.030.3(3)(d). The State concedes that the

statutory language “any firearms” is itself ambiguous as to the allowable unit of prosecution

because it could reasonably be interpreted to permit either a single prosecution or multiple

prosecutions for a single incidence of stealing multiple firearms. See Liberty, 370 S.W.3d at 548

(prohibition in section 573.037, RSMo Cum. Supp. 2007, against possession of “any obscene

material” is ambiguous because it reasonably could be interpreted to permit either a single



                                               7
prosecution or multiple prosecutions for a single incidence of possession of eight still

photographs of child pornography); State v. Baker, 850 S.W.2d 944 (Mo. App. E.D.

1993)(statutory prohibition against possession of “any” weapon in correctional facility is

ambiguous as to allowable unit of prosecution). “But before finally deciding that a statute is

ambiguous, a court is permitted to apply rules of statutory construction, for the rule of lenity ‘in

no wise implies that language used in criminal statutes should not be read with the saving grace

of common sense with which other enactments, not cast in technical language, are to be read.’”

Liberty, 370 S.W.3d at 549 (quoting Bell v. United States, 349 U.S. 81, 83 (1955)). Thus, a court

“will use relevant rules of construction to determine whether the otherwise ambiguous term ‘any’

can be clarified as to whether, in context, the legislature did or did not intend to allow multiple

punishments.” Id.

       In determining legislative intent, it is fundamental that a section of a statute should not be

read in isolation from the context of the whole act.” State v. Salter, 250 S.W.3d 705, 711 (Mo.

banc 2008); State v. Haskins, 950 S.W.2d 613, 615 (Mo. App. S.D. 1997).                “A statute’s

provisions must be construed and considered together and, if possible, all provisions must be

harmonized and every clause given some meaning.” State v. Moore, 952 S.W.2d 812, 813 (Mo.

App. E.D. 1997). “Related clauses are considered when construing a particular portion of a

statute.” State v. Sledd, 949 S.W.2d 643, 646 (Mo. App. W.D. 1997). “It is presumed that the

legislature intended that every word, clause, sentence, and provision of a statute have effect.”

State v. Downing, 359 S.W.3d 69, 71 (Mo. App. W.D. 2011)(internal quotes and citation

omitted). Conversely, it will be presumed that the legislature did not insert idle verbiage or

superfluous language in a statute.” Id. (internal quote and citation omitted).




                                                 8
         The State argues that section 570.030.3 shows a legislative intent to more harshly punish

those who put the public in jeopardy by stealing firearms, which is more fully achieved by

allowing the State to separately prosecute the theft of each individual firearm. The State is

correct that subsection 3 designates the theft of specific property, including firearms, for

enhancement from a class A misdemeanor to a class C felony. However, increasing the penalty

for theft of firearms does not necessarily show that the legislature intended multiple punishments

for the theft of each firearm.

         More importantly, the State ignores subsection 6 of section 570.030, which further

elaborates on the unit of prosecution for the theft of specific property listed in subsection 3 and

which must be considered in construing subsection 3. Section 570.030.6 provides, “The theft of

any item of property or services pursuant to subsection 3 of this section which exceeds five

hundred dollars may be considered a separate felony and may be charged in separate counts.”

This provision shows the legislature’s clear intent for punishment for the theft of each firearm

with a value over five hundred dollars. Specifically designating the theft of property listed in

subsection 3 valued at over $500 to be considered separate felonies and not so designating the

theft of property valued at $500 and less reflects a legislative intent that theft of the latter are not

separate felonies and may not be charged in separate counts. Had the legislature desired separate

punishment for the theft of each firearm under that value, it could have expressly provided

similar language as that in subsection 6 or utilized the singular “a” instead of “any” or the

singular formulation of “firearm.”1 It, however, did not do so.


1
  Despite the use of the term “any” in statute, where evidence distinguishes offenses by showing that the crimes
were separated by time or location or by showing different types of offenses or items, multiple convictions may be
permitted. See State v. Roggenbuck, 387 S.W.3d 376 (Mo. banc 2012)(where, in contrast to the facts in Liberty, the
evidence showed that defendant acquired possession of five different photos at five different points of time, each act
of acquisition and possession was temporally distinguishable and constituted separate act in violation of section
573.037); State v. Williams, 542 S.W.2d 3 (Mo. App. 1976)(multiple drug convictions under statute prohibiting
possession of “any controlled or counterfeit substance” were permissible because defendant possessed two different

                                                          9
        Subsection 6 clarifies the otherwise ambiguous phrase “any firearms.” Read as a whole,

section 570.030 shows a legislative intent to not allow multiple punishments for a single

incidence of theft of multiple firearms not valued over $500. The statute is not ambiguous as to

the unit of prosecution in this case. The State did not allege a value of the firearms in the

charging document and did not prove a value at trial. Convictions on Counts 3 and 4 for stealing

firearms violated Bazell’s constitutional right to be free from double jeopardy. The trial court

plainly erred in entering judgment on both counts, and manifest injustice will result if both

convictions are allowed to stand. Accordingly, Bazell’s conviction under Count 4 for theft of

firearms is reversed.

        Bazell’s convictions and sentences for first-degree burglary, one count stealing firearms,

stealing property over $500, and stealing property under $500 are affirmed. Her conviction and

sentence for one count of stealing firearms is reversed.




                                                   __________________________________________
                                                   VICTOR C. HOWARD, JUDGE

All concur.




types of drugs—heroin and marijuana—which required the State to prove different elements for the distinct drugs
underlying the charges).

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