State v. Passley

Decision Date07 June 2012
Docket NumberNo. SD 31302.,SD 31302.
Citation389 S.W.3d 180
PartiesSTATE of Missouri, Plaintiff–Respondent, v. Steven F. PASSLEY, Defendant–Appellant.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Craig A. Johnston, Columbia, MO, for Appellant.

Chris Koster, Attorney General, and Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY W. LYNCH, Judge.

Following a bench trial, Steven Fitzgerald Passley (Defendant) appeals his conviction and sentencing as a prior and persistent offender on the class C felony of stealing, pursuant to section 570.030.3(3)(c).1 Defendant claims the enhancement of the offense from a class A misdemeanor, see section 570.030.8, to a class C felony was erroneous in three respects: section 570.030.3 does not provide for the enhancement; the information did not allege an element necessary for the enhancement; and the evidence adduced at trial was not sufficient to support the enhancement. Finding no merit in any of Defendant's claims, we affirm.

Factual and Procedural Background

On February 1, 2010, the victim was shopping at a Wal–Mart store in Kennett when her cell phone case, which contained her cell phone and bankcard, was stolen after she put it down on top of the jewelry counter. She reported the theft to store security and police were notified. The same evening, two transactions occurring after the theft were posted to the victim's bank account: one at a Casey's store in Kennett and the other at a Wal–Mart store in Malden. The victim learned of these transactions after she contacted her bank the following morning, and she reported them to the police.

Store security personnel obtained a still photograph from surveillance video showing Defendant picking up the cell phone case, placing it under his arm, and leaving the store with his wife. The photograph was provided to police, and when it was posted at the police station, Defendant was identified by an officer at the station.

Defendant was initially charged with felony stealing in Dunklin County. The information charged that Defendant committed the class C felony of stealing, in violation of section 570.030, “in that on or about February 1, 2010, ... [Defendant] appropriated a credit device which property was owned by [victim], and [Defendant] appropriated such property without the consent of the owner and with the purpose to deprive her thereof.” The information further alleged that Defendant was a prior and persistent offender, having entered pleas of guilty to two or more felonies committed at different times. Following a change of venue, Defendant waived his right to a jury trial and was tried by the court in Stoddard County.

At trial, Defendant's wife testified that she and Defendant were shopping for a ring at Wal–Mart when he abruptly told her he was ready to leave. After they left the store, Defendant handed her “a wallet” and told her to look inside, where she found a cell phone and bankcard bearing the victim's name. Thereafter, they went to a Casey's store in Kennett and purchased gas using the stolen card. At a Wal–Mart store in Malden, they attempted to purchase a printer using that card, and Defendant's wife used the victim's name when she signed for the purchase.

Defendant rested his case without presenting any evidence, and the trial court took the matter under advisement. Four days later, the trial court entered its order finding Defendant guilty as charged and thereafter sentenced Defendant as a prior and persistent offender to ten years' imprisonment. Defendant now appeals, presenting three points relied on challenging his conviction of the class C felony of stealing rather than the class A misdemeanor of stealing. We discuss his points in reverse order.

Discussion
Section 570.030 Provides for Enhancement of Stealing to Class C Felony

In his third point, Defendant claims that after its amendment in 2002, section 570.030.3 no longer provides for the enhancement of the stealing offense from a class A misdemeanor to a class C felony. Defendant initially premises his point on section 570.030.8, which provides [a]ny violation of this section for which no other penalty is specified in this section is a class A misdemeanor.” Defendant then points out that before its amendment in 2002, section 570.030.3, RSMo 2000, provided that [s]tealing is a class C felony if: ... (3) The property appropriated consists of: (c) Any credit card or letter of credit.” (Emphasis added). In 2002, however, by H.B. 1888, this language was changed by the legislature to read 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: ... (c) Any credit card or letter of credit.” (Change in italics). Next, Defendant cites us to State v. Ruth, 830 S.W.2d 24, 27 (Mo.App.1992), for the proposition that “with stealing, the value of the appropriated property is not an element of the offense.” Therefore, Defendant argues, [i]f value is not an element of the offense, subsection 3 to § 570.030, which contains the list of enhancement factors (including credit card), does not apply because, by its own terms, the list only applies to any offense in which the value of property or services is an element.

Defendant concedes that this issue was not preserved for appellate review because it was not presented to the trial court and therefore, he seeks plain error review under Rule 30.20.2

We are not required to review for plain error; to do so is within our discretion. The two-step analysis is (1) did the trial court commit evident, obvious, and clear error affecting the defendant's substantial rights; and (2) if so, did such plain error actually result in manifest injustice or a miscarriage of justice? Unless a defendant gets past the first step, any inquiry should end.

State v. Smith, 293 S.W.3d 149, 151 (Mo.App.2009) (internal citations and quotations omitted). Here, we find no evident, obvious, and clear error affecting Defendant's substantial rights and end our inquiry.

‘Statutory interpretation is an issue of law which this court reviews de novo.’ State v. Lewis, 188 S.W.3d 483, 486 (Mo.App.2006) (quoting State ex rel. Nixon v. Premium Standard Farms, Inc., 100 S.W.3d 157, 161 (Mo.App.2003)). Courts apply certain guidelines to interpretation, sometimes called rules or canons of statutory construction, when the meaning is unclear or there is more than one possible interpretation.” State v. Rowe, 63 S.W.3d 647, 649 (Mo. banc 2002). When the words are clear, however, there is nothing to construe beyond applying the plain meaning of the law. Id. (citing State ex rel. Mo. Pac. R.R. v. Koehr, 853 S.W.2d 925, 926 (Mo. banc 1993)).

“In interpreting a statute, we are to ascertain the intent of the legislature.” State v. Harris, 156 S.W.3d 817, 822 (Mo.App.2005). Such intent, however, can only be derived from the words of the statute itself. Rowe, 63 S.W.3d at 650 (citing Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998)). Courts do not have the authority to read into a statute a legislative intent that is contrary to its plain and ordinary meaning.” Id. (citing Kearney Special Rd. Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo. banc 1993)). “A court will look beyond the plain meaning of the statute only when the language is ambiguous or would lead to an absurd or illogical result.” Akins v. Dir. of Revenue, 303 S.W.3d 563, 565 (Mo. banc 2010).

In Ruth, the linchpin of Defendant's argument, the original information charged the defendant with the class C felony of stealing and, in addition, alleged that the value of the stolen property was $150 or more.3Ruth, 830 S.W.2d at 25. On the eve of trial, the State filed an amended information in which no value was assigned to the stolen property, but rather, it was alleged that the defendant had two prior stealing convictions, which, at that time, enhanced the offense of stealing from a class A misdemeanor to a class C felony pursuant to section 570.040.1, RSMo 1986. Id. The defendant argued on appeal that the trial court erred in allowing the State to file the amended information because it charged a new offense. Id. at 26. This court disagreed because [t]he value of the appropriated property is not an element of the offense of stealing[,] as set forth in 570.030.1.4Id. Therefore, “the deletion of an allegation of ... value did not charge the defendant with an additional or different offense.” Id. As the court noted, the purpose of the allegation of value was to “provide for increased punishment.” Id.

After Ruth was decided, the United States Supreme Court, as foreshadowed in Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[ ] and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362–63, 147 L.Ed.2d 435 (2000). Our Supreme Court has since consistently recognized that Apprendi and Jones elevated those facts giving rise to increased punishment to “the functional equivalent of an element of a greater offense.” See State v. Johnson, 284 S.W.3d 561, 585 (Mo. banc 2009); State v. Clark, 197 S.W.3d 598, 601 (Mo. banc 2006); State v. Jaco, 156 S.W.3d 775, 780 (Mo. banc 2005); State v. Glass, 136 S.W.3d 496, 513 (Mo. banc 2004).

When read in the light of Apprendi and Jones, the clear and plain words used in section 570.030.3 show the legislative intent to treat the property types increasing the punishment for stealing from a class A misdemeanor to a class C felony as elements of a greater offense where the value of the appropriated property is put in issue. Here, the value of the item alleged to have been stolen, due to its nature and its inherent value as assigned to it by the legislature in listing it...

To continue reading

Request your trial
18 cases
  • Barber v. State
    • United States
    • Missouri Court of Appeals
    • July 14, 2020
    ...case was considered a class C felony, and Bazell did not address the applicable statute of limitations. See, e.g., State v. Passley , 389 S.W.3d 180, 184 (Mo. App. S.D. 2012), abrogated by Bazell , 497 S.W.3d at 267 n.3.Barber now, for the first time on appeal, argues that counsel should ha......
  • State v. Pherigo
    • United States
    • Missouri Court of Appeals
    • December 7, 2012
    ...a reasonable doubt all the elements necessary for a conviction for the class C felony of stealing a credit card. See State v. Passley, 389 S.W.3d 180 (Mo.App.2012). Point II is denied.Conclusion Defendant's points are without merit. The trial court's judgment is affirmed.NANCY STEFFEN RAHME......
  • Amsden v. Minor
    • United States
    • U.S. District Court — Eastern District of Missouri
    • December 8, 2021
    ...Court of Appeals had held that Mo. Rev. Stat. 570.030 did provide for a felony enhancement to a stealing offense. See State v. Passley, 389 S.W.3d 180, 184 (Mo.Ct.App. 2012) (“[T]he clear and plain words used in section 570.030.3 show the legislative intent to treat the property types incre......
  • State v. Lammers
    • United States
    • Missouri Court of Appeals
    • March 31, 2015
    ...a model act, comments of the drafting committee often will be influential in interpreting the statutory language. State v. Passley, 389 S.W.3d 180, 186 n.7 (Mo.App. 2012). See also State v. Ecford, 239 S.W.3d 125, 128 (Mo.App.2007) (when construing uniform code, comments accompanying it car......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT