STATE OF MISSOURI v. KURT ROSS

STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD33071
)
KURT ROSS, ) FILED: May 5, 2015
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY
Honorable Kenneth G. Clayton, Judge
AFFIRMED
Kurt Ross appeals two felony convictions for stealing firearms. We address
here only a plain error double jeopardy claim that involves statutory interpretation. 1
Background
Ross borrowed two heirloom rifles from a friend, sold them to a gun dealer,
and pocketed $200. He was charged with and convicted of two counts of felony
1 We affirm as to Ross’s other points per Missouri Court Rule 30.25. After careful
consideration, all judges agree that an extended opinion on those claims would have
no precedential value. We have furnished the parties a memorandum, for their
information only, explaining our disposition of those points.
stealing, one for each rifle sold, and received two concurrent sentences. 2
Double Jeopardy Claim
Ross charges that the trial court plainly erred in accepting two firearm-theft
verdicts and sentencing Ross on two counts instead of just one. To quote Ross, this
was double jeopardy since he “stole these firearms at the same time, [which] only
constitutes a single offense because section 570.030.3 lists the unit of prosecution as
‘any firearms.’” Alternately, Ross claims that “any firearms” is ambiguous as to the
unit of prosecution, so the rule of lenity requires courts to adopt the statutory
construction that favors Ross.
Three sentences from Ross’s briefs capture his argument:
 “The question presented in this appeal is whether the alleged
simultaneous appropriation of two firearms is one or two violations of
this statute in light of the ‘any firearms’ language used in the statute.”
 “Had the general assembly intended to punish a person separately for
each firearm taken at the same time, it could have expressed this
intention by using the term ‘firearm’ instead of ‘firearms.’”
 “Because the phrase ‘any firearms’ is at least ambiguous to the
allowable unit of prosecution, and because that ambiguity must be
resolved in Mr. Ross’s favor, this Court must reverse one of Mr. Ross’s
stealing convictions and order him discharged from that sentence.”
This court disagrees.
Analysis
“The Double Jeopardy Clause is offended only to the extent that a court
imposes a multiple punishment where the legislature did not intend a multiple
punishment.” State v. Heslop, 842 S.W.2d 72, 75 (Mo. banc 1992). In Heslop, our
2The record indicates Ross also burned the same friend’s truck, destroying it, and in
a separate case was convicted of two additional felonies.
2
supreme court considered “whether the legislature intended to permit multiple
punishments for stealing more than one item of property from the same owner at the
same time” and found that it did. Id. at 75-76. Heslop effectively negated Missouri’s
single larceny rule, which held that “‘[w]here several articles are stolen from the
same owner at the same time and place, only a single crime is committed ….’” Id. at
75 (quoting State v. Cody, 525 S.W.2d 333, 334 (Mo. banc 1975)). 3
Missouri’s stealing statute, § 570.030, comprised eight subsections at the time
of this offense. 4 Subsection 1 defined the crime:
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.
Subsections 2 and 5 dealt with evidentiary issues and certain charging mechanics.
The remaining subsections provided felony punishments for various thefts (#3, 4, 6,
7) and that any other theft was a misdemeanor (#8).
As in Heslop, Ross errs in claiming that a felony punishment provision 5
shows he cannot be convicted for both thefts. Per Heslop and § 570.030.1, Ross
committed the crime of stealing twice, once for each gun. He could be charged with
both crimes, found guilty twice, and punished twice. “The criminal code shows
3 Heslop’s guidance on legislative intent as to stealing distinguishes this case from
those involving other crimes, like State v. Liberty, 370 S.W.3d 537 (Mo. banc
2012), where appellate courts were forced to use the rule of lenity as a last resort
since they could make “‘no more than a guess as to what the legislature intended.’”
Id. at 547 (quoting Fainter v. State, 174 S.W.3d 718, 721 (Mo.App. 2005)).
4 The language Ross cites (“Any firearms”) has been in the statute since 1979.
5 Specifically § 570.030.3(3)(d), which as pertinent here makes stealing a class C
felony if the “property appropriated consists of … [a]ny firearms[.]”
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legislative intent to punish the commission of separate crimes.” Heslop, 842
S.W.2d at 76.
Ross’s argument seems more about two felony punishments, which differs
from Point III’s double jeopardy claim that Ross could be convicted only once on this
record. This ends our inquiry; we will not devise our own arguments for reversal or
forsake neutrality to advocate for a party. Point denied. Judgment affirmed.
DANIEL E. SCOTT, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
WILLIAM W. FRANCIS, JR., P.J./C.J. – CONCURS
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