Under section 570.030.1,
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.
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 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
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:
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.
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 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
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 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
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).
The detective testified as follows regarding a photo lineup shown to a witness:
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:
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 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.
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.
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: