State v. Smith

Laura Denvir Stith, Judge,

concurring and dissenting. ■

While I concur with the holdings in Sections I and III in the majority opinion, I dissent from the holding in Section II-that this Court’s decision in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016), applies to charges of felony stealing of $500 or more but less than $25,000 under, section 570.030.3d). 1.

*234 The majority’s holding is based on the premise that the elements of the offense of stealing $500 or more are set out solely in section 570.030.1, which states in relevant part, “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.” The majority says it can consider only this definition section and can ignore section 570.030.3(1), which provides that if the property appropriated has a value of $500 or more but less than $25,000, it is a class C felony.

The majority’s premise that there is only one crime of stealing fully set out in the definition of stealing and other provisions of the statute cannot be considered ignores well-settled principles. A court cannot take a single statutory word or phrase and determine its meaning without consideration of the rest of the statute. To the contrary, “[t]he primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning.” State ex rel. Evans v. Brown Builders Elec. Co., 254 S.W.3d 31, 35 (Mo. banc 2008) (internal quotations and citations omitted).

Bazell correctly noted, in determining legislative intent, if the meaning of the statutory language is plain and clear, “the Court should not employ canons of construction to achieve a desired result.” 497 S.W.3d at 266 . But the majority is incorrect in suggesting this means a statutory provision—such as the definition of stealing on which the majority relies—must be interpreted in isolation from the remainder of the statute. To the contrary, “[t]he provisions of a legislative act are not read in. isolation but construed together, and if reasonably possible, the provisions will be harmonized with each other.” Bachtel v. Miller Cnty. Nursing Home Dist., 110 S.W.3d 799, 801 (Mo. banc 2003). “In determining the intent and meaning of statutory language, ‘the words must be considered in context and sections of the statutes in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words.’ ” Evans, 254 S.W.3d at 35 , quoting, State ex rel. Wright v. Carter, 319 S.W.2d 596, 600 (Mo. banc 1959); see also State v. McLaughlin, 265 S.W.3d 257, 267 (Mo. banc 2008).

Consideration of the statute as a whole is required in determining whether the meaning of a word or provision is clear, and not just after a court has determined the language is ambiguous. For instance, this Court held in J.B. Vending Co., Inc. v. Director of Revenue, 54 S.W.3d 183, 187-88 (Mo. banc 2001), in determining whether the word “public” as used in a taxing statute was ambiguous, it was important to recognize:

The issue is not whether a particular word in a statute, considered in isolation, is ambiguous, but whether the statute itself is ambiguous. This follows from the fact that the goal in interpreting a statute is to determine the legislative intent, and to do that one must consider the meaning of a particular word in the context of the entire statute in which it appears. ... Here, when the statute as a whole is considered, the intent of the legislature and the language of the statute are both intrinsically clear.

*235 (Emphasis added and citations omitted). Similarly, in deciding the meaning of a phrase in the Workers’ Compensation Act, section 287.215, the court of appeals held:

To discern the statute’s purpose, its context with the over-all scheme established by the legislature for adjudicating workers’ compensation claims is considered.

Parsons v. Steelman Transp., 335 S.W.3d 6, 13-14 (Mo. App. 2011), quoting, Fisher v. Waste Mgmt. of Mo., 58 S.W.3d 523, 526 (Mo. banc 2001). To the same effect is Bolen v. Orchard Farm R-V School District, 291 S.W.3d 747, 751 (Mo. App. 2009), which states that while “this court will give effect to the language as written, and will not engage in statutory construction,” it is also necessary that the court:

presume that the legislature intended that each word, clause, sentence, and provision of a statute have effect and should be given meaning. [State ex rel. Vincent v. D.C., Inc., 265 S.W.3d 303, 306 (Mo. App. 2008).] In determining the intent and meaning of statutory language, the words must be considered in context and sections of the statutes in pari materia, as well as cognate sections, must be considered in order to arrive at the true meaning and scope of the words. State ex rel. Evans v. Brown Builders Elec. Co., Inc., 254 S.W.3d 31, 35 (Mo. banc 2008). We must construe provisions of the entire legislative act together and, to the extent reasonably possible, harmonize all provisions. Geary v. Missouri State Employees’ Retirement System, 878 S.W.2d 918, 922 (Mo. App. W.D. 1994). Furthermore, related clauses must be considered when construing a particular portion of a statute. Id.

It is well established, therefore, that the meaning of statutory language can only be known by looking at it in context. The majority’s interpretation of section 570.030 violates these bedrock principles of statutory construction. The majority makes no attempt to consider the definition of the misdemeanor of stealing in the context of the remainder of the statute setting out the circumstances in which the legislature intended to create a felony crime of stealing.

Indeed, the majority ignores the fact section 570.030.3 explicitly provides that “notwithstanding any other provision of law”—which necessarily includes the definition of stealing—certain types of stealing are class C felonies if they are an “offense in which the value of property or services is an element.” (Emphasis added). It also ignores the remaining two-thirds of section 570.030 setting out various additional elements that, if proved, would constitute a different class C felony offense of stealing. The majority would give these provisions no meaning or purpose at all because they would never apply to any offense in that, according to the majority, only the definition of stealing as set out in section 570.030.1 contains the elements of any offense of stealing. This is contrary to the fundamental requirement that, in determining the meaning of statutory language, “This Court must presume every word, sentence or clause in a statute has effect, and the legislature did not insert superfluous language.” Bateman v. Rinehard, 391 S.W.3d 441, 446 (Mo. banc 2013). “An entire clause of the statute should not be relegated to the status of excess verbiage.” Schoemehl v. Treasurer of State, 217 S.W.3d 900, 902 (Mo. banc 2007); see also Evans, 254 S.W.3d at 35 . 2

*236 This does not mean Bazell was wrongly decided or the statute is well-written to achieve the legislative purpose. As Bazell correctly noted, as reorganized by the legislature’s 2002 revision of the statute, section 570.030.3 does require the value of the item appropriated be an element. 497 S.W.3d at 266-67 . Bazell also correctly noted neither the definition of stealing set out in section 570.030.1 nor the subdivision listing the crime of stealing a firearm make the value of the item appropriated an element. Id. Bazell, therefore, correctly held that stealing a firearm is a misdemeanor, not a class O felony, under section 570.030.3(3)(d) because value is not an element of the crime. Id. at 267 .

In so holding, Bazell used broad language, relied on by the majority, that because the definition of stealing-in section 570.030.1 does not make “the value of the property or services” an element, “[t]he value of the property or services appropriated is not an element of the offense of stealing.” Id. at 266 . But that analysis made sense in Bazell because it was self-evident section 570.030.3(3)(d), which in full states “any firearms,” does not make the value of any services or property an element, so unless valué was part of the definition in section 570.030.1, stealing a firearm could not be a felony. Indeed, that is all Bazell actually held because that was the only issue before the Court as the defendant failed to preserve his argument that stealing $500 or more was not a class C felony and this Court expressly declined to’reach that issue. Id. at 267 n.4.

To the extent Bazell can be read to foreclose any other subdivision of section 570.030.3 from being considered a class C felony, even if the subdivision sets out the value of property or services as an element that enhances punishment, it is purely dicta. Such dicta has no binding effect, as this Court reaffirmed just last year:

Judicial decisions “must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.” Parker v. Bruner, 683 S.W.2d 265, 265 (Mo. banc 1985) (internal quotation omitted) .... If the courts’ language was intended to address circumstances beyond the facts of those cases, it is dicta. Id.

Byrne & Jones Enters. v. Monroe City R-1 Sch. Dist., 493 S.W.3d 847, 855 (Mo. banc 2016).

Applying these principles here, it is self-evident from reading the statute the crime of stealing $500 or more up to $25,000 is different from the crime of stealing a firearm and that Bazell ⅛ holding is not applicable to the facts of this case. Here, the elements of the crime, in addition to appropriating property of another, include that “the value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand. dollars.” § 570.030.3(1). Unlike the subdivision challenged in Bazell, the plain and ordinary meaning of this language indicates the value of property or services is an element of this crime. The majority says this cannot be the case because section 570.030.3 requires that “an offense must contain the ‘value’ element before considering whether additional facts justifying enhancement under one of the sub- *237 paragraphs of subsection .3 is available.” Op. at 230. But there is nothing in the statute about the order in which one must look to provisions of the statute to determine whether value is an element. The statute simply provides that the offense is a class C felony if value is an element. On its face, section 570.030.3(1) makes value an element, and, therefore, the offense under this subdivision is a class C felony.

If this is not enough, further clarity is provided by section 570.030.5, RSMo Supp. 2009, which at the time of the crime provided, “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.” 3 Of course, section 570.030.3 could not set out “separate” felonies if it did not make the stealing of property $500 or more a felony in the first instance. Contrary to the majority’s opinion, “the structure of section 570.030” supports the conclusion that stealing $500 or more is a felony, not a misdemeanor. Nothing in Bazell ⅛ actual holding requires a contrary result, and this Court may affirm the conviction in this and other cases involving stealing $500 or more without disturbing the result in Bazell or similar cases in which the charges, unlike charges under section 570.030.3(1), involve firearms or other types of property in which value is not a required finding.

Finally, to the extent the majority’s analysis is based on its belief that a fact necessary for sentence enhancement is not an element of an offense, and that all of the elements must be set out in the definition section of the crime alone, it is just incorrect. Even had the legislature not made it clear it intended the provisions of section 570.030.3 to be elements of felony C stealing, this Court would be required to construe them as such under the United States Supreme Court’s decisions in such cases as Apprendi v. New Jersey, 530 U.S. 466, 476-77 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Alleyne v. United States, — U.S. —, 133 S.Ct 2151, 2155 , 186 L.Ed.2d 314 (2013). In these cases, the Supreme Court rejected the majority’s treatment of the factors set out in section 570.030.3 as mere sentence enhancers rather than elements. Instead, whether labeled as a sentence enhancer or element, the Supreme Court instructs courts to look at the provision’s purpose and effect. Apprendi, 530 U.S. at 467, 489-90 , 120 S.Ct. 2348 . If the finding of fact is used to enhance punishment, then it is to be treated as an essential element of the offense and must be submitted to the jury and found beyond a reasonable doubt. Id. Ap-prendi’?, holding has been extended to facts in aggravation in death penalty cases. Ring v. Arizona, 536 U.S. 584, 586-87 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002).

More recently, Alleyne reaffirmed, “Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. at 2155 . Accordingly, a defendant has the right to demand the jury find any fact necessary to punishment. Id.

Here, the felony enhancement provisions of section 570.030.3 allow for enhanced punishment for certain conduct. See §§ 558.011.1(3), 558.011.1(5). Under the majority’s approach, even though the value of the item appropriated is required to be considered as an element and found by the jury for Sixth Amendment purposes, that finding does not make the crime into a class C felony because the statute sub silencio maintains the distinction between a sentencing enhancer and an element for purposes of the definition of stealing. This *238 self-contradictory interpretation of the same statutory requirement is illogical. As Mr. Smith was charged with stealing $500 or more under section 570.030.3(1), he is. entitled under the Sixth Amendment to have the question of the value of the stolen property submitted to the jury, for it is a fact used to increase punishment and is therefore an “element.” Alleyne, 133 S.Ct. at 2155 . As such, it should be treated as an element of his crime for other purposes, including for the purpose of deciding whether value is an element of the crime under section 570.030.3. 4

For these reasons, I dissent from the majority’s holding that conviction under section 570.030.3(1) does not constitute a class C felony.

As in the majority opinion, all statutory references are to RSMo Supp. 2013, unless otherwise specified.

. The majority does not suggest anything in section 570.030.1 itself provides that it is the sole source for identifying the elements of all crimes of stealing, that other statutory sections cannot be considered, or that the legislature has provided only for misdemeanor steal *236 ing. Neither does the majority suggest the legislature actually wanted to make stealing between $500 and $24,999 a misdemeánor rather than a felony, for that argument would be absurd. So the principle that "[statutes should be construed in such a way as to avoid unreasonable or absurd results” is particularly relevant here. Nance v. Maxon Elec., Inc., 395 S.W.3d 527, 537 (Mo. App. 2012) (internal citations omitted).

. This language was later moved to section 570.030.6, RSMo Supp. 2013.

. This distinguishes the "$500 or more” enhancement at issue in this case from the "any firearm” enhancer at issue in Bazell, which did not have value as an element.