# SUPREME COURT OF MISSOURI en banc STATE OF MISSOURI, ) Opinion issued August 11, 2020 ) Respondent, ) ) v. ) No. SC98298 ) RODNEY KNOX, ) ) Appellant. ) Appeal from the Circuit Court of the City of St. Louis The Honorable Clinton R. Wrigh t , Judge Rodney Knox alleges the circuit court erred in entering judgment against him for two counts of class A misdemeanor stealing because the jury found only the elements necessary to convict him of class D misdemeanor s
. This Court agrees. The jury instructions merely required the jury to find Mr. Knox retained the two victims’ personal items without their consent and with the purpose of withholding this property from them. Absent proof of value, th e offense submitted was a class D mi sdemeanor under section
570.030 .7 , 1 not a class A misdemeanor under section 570.030.8

. Therefore, the circuit

1 S tatutory references are to RSMo 2016; however, two versions of section 570.030 appear in RSMo 2016: (1) the version of section 570.030 that became effective January 1, 2017 , along with the rest of the new criminal code ; and (2) the version of section 570.030 in effect from August 28, 2016 , through December 31, 2016. At the time Mr. Knox committed the offenses, the 2017 criminal code was ( and remains ) in effect. Accordingly,2 court erred in entering judgment for two class A misdemeanor stealing convictions

. Mr. Knox also a ppeals his judgment of conviction for one count of felony stea ling

. B ecause his third victim failed to specifically state Mr. Knox or an accomplice stole the $1,200 the intruders found while going through th is victim’s pockets in the course of stealing things of value from his apartment, he argues, the evidence was insufficient to
convict him of stealing more than $750

. This Court disagrees. The jury was free to infer
Mr. Knox got the $1,200 from the victim b ased on the victim’s testimony in combination
with the evidence that Mr. Knox and another man were caught wh ile leaving the victim’s apartment complex immediately after the robbery with other stolen items , the victim ’s identification of Mr. Knox as one of the individuals who robbed him , and the fact Mr.
Knox had $1,570 in his pocket when arrested

. T h

is evidence provided the jury with a sufficient basis to infer Mr. Knox stole the cash and to disbelieve his alternative explanation for having so much cash in his pocket

. But because violation of that section is a class D felony under the version of that statute in effect when the crime was committed , the circuit court erred in entering judgment against Mr. Knox for a class C felony

. T his Court reverses the judgment and remands the case for entry of a corrected judgment consistent with this opinion.
I. FACTUAL AND PRO CEDURAL BACKGROUND The State charged Rodney Knox with three counts of first

- degree robbery and three counts of armed criminal action, 2 all stemming from a single event in January 2017.

for ease of reference, citations are to the 2017 criminal code unless otherwise indicated. 2 The State also charged Mr. Knox with resisting arrest but filed a memorandum of nolle3 The evidence showed that several armed men with face coverings pushed their way into the apartment of Jabari Turner. The men forced Mr. Turner and his friends to lay on the
floor while they searched the apartment

. The State presented evidence the intruders took

a laptop computer, a PlayStation controller, cellular telephon es, headphones, a Bluetooth speaker, a watch, marijuana, and a Versace belt. Mr. Turner testified that he had $1,200
in rent money in his pockets and that the intruders went through his pockets and the pockets of the other victims.
Mr. Turner called the police once the intruders left . The police arrived at the apartment building within one minute and saw four men with face coverings and bags full of items getting out of the elevator

. Upon seeing police, t he men began to run, dropp ing some items as they went . Officers apprehend ed two of the suspects, later identified as Rodney Knox and Donnoven Williams. Mr. Turner identified Mr. Knox at the scene, telling police Mr. Knox had been the man with a black and silver pistol. Mr. Knox was found with a handg un, $1,570 in cash, and several items Mr. Turner identified as stolen, including the Versace belt, a watch, the Bluetooth speaker, and headphones. At trial, the State did not present evidence of the value of the stolen items of personal property

. 3 Mr. Tur ner testified he had $1,200 in cash in his pockets , the intruders searched his pockets and those of his friends, and he thought at least one of his
friends had cash

. B ut Mr. Turner was not specifically asked whether the men had taken

prosequi regarding this charge on the day o f trial. 3 The briefs suggest this was because the State believed it would obtain a conviction for first

- degree robbery, which does not require proof of the value of the items stolen , although certain stealing offenses do so require

.4 the cash they found w hen going through his or the other victims’ pockets

. Mr. Knox testified in his own defense. H e said he went with two of his uncle s and
another man to the apartment to purchase marijuana but did not know his three companions intended to rob the people in the apartment . Mr. Knox testified he waited for the three other men on a di fferent floor of the apartment complex while he thought they were buying drugs and then went up to Mr. Turner’s floor , where he saw his companions leaving the apartment w hile wear ing face coverings. The three men each held bags filled
with various items , and some items fell out of the bags in the elevator

. Mr. Knox said he picked up the dropped items at his uncle’s direction. Mr. Knox testified that , when the police arrived , he did not run as the others did because he was unaware of the robbery and did not know the items he held had been stolen

. He explained the $1,570 in cash in his pocket was his life savings , which he carried with him because his mother was a drug addict and he did not want her to take the
money. Mr. Knox said the gun he was carrying was registered to him and he always carried it because he had been robbed in the past.
The circuit court instructed the jury on three counts of first

- degree robbery and three co unts of armed criminal action for use of a weapon in each robbery , one for each of the three robbery victims

. W ithout objection from the State, as to the two victims who did not testify at trial , the court also instructed the jury that , if it did not find Mr. Knox guilty of robbery as to them, it should consider whether he was guilty of misdemeanor stealing for taking one victim’s watch and misdemeanor stealing for taking the other victim’s Bluetooth speaker without consent and with the intent to keep them . These5 misdemeanor instructions did not require the jury to make any finding as to the value of the watch or speaker. The jury acquitted Mr. Knox of armed criminal action and , as to these two victims, found him guilty only of the two misdemeanor stealin g counts

— the jury did not find him guilty of the se two first

- degree robbery counts

. As to Mr. Turner, again without objection from the State, the circuit court gave the jury two additional instructions that , if it did not find Mr. Knox guilty of the firs t

- degree robbery count, it should consider whether (1) he was guilty of felony stealing by taking
Mr. Turner’s money and headphones with a value of more than $750 or (2) he was guilty of misdemeanor stealing for taking Mr. Turner’s headphones without his c onsent and with the intent to keep them . The jury again did not return a guilty verdict on t he
submission of first

- degree robbery and acquitted Mr. Knox on the associated count of armed criminal action but did find Mr. Knox guilty of felony stealing f or t aking
Mr. Turner’s $1,200 and headphones.
Mr. Knox appealed. The key question on appeal i s whether, based on these jury verdicts, the circuit court properly entered judgment for one count of c lass C felony stealing from Mr. Turner, for which Mr. Knox re ceived a five

- year suspended sentence, and two counts of class A misdemeanor stealing from two other victims , for which he was sentenced to concurrent terms of six months in jail and released for time served

. After opinion by the court of appeals, this Co urt granted transfer. Mo. Const. art. V, § 10

. For the reasons discussed below, the Court holds the circuit court should have entered judgment for one count of class D felony stealing and two counts of class D misdemeanor stealing and remand s for further proceedings in accordance with this opinion

.6 II. STANDARD OF RE V IEW “An appellate court’s review of the sufficiency of the evidence to support a criminal conviction is limited to determining whether there is sufficient evidence from which a reasona ble jury could have found the defendant guilty beyond a reasonable doubt.” State v. Porter, 439 S.W.3d 208, 211 (Mo. banc 2014) . Evidence and inferences favorable to the State are accepted as true , and evidence to the contrary is rejected. Id. Appellat e review is limited to whether , “in light of the evidence most favorable to the State, any rational fact

- finder could have found the essential elements of the crime beyond a reasonable doubt.” Id. Whe n an error is not objected to in the circuit court, on appeal “plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20

. The question of wh at the State must prove to support a conviction for a class A
misdemeanor under section 570.030 .8 is one of statutory interpretation and, therefore, is determined de novo

. Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008) . “The primary rule of statutory interpretation is to give effect to the legislative intent as reflected in the plain language of the statute.” State v. Salazar, 236 S.W.3d 644, 646 (Mo. banc 2007) . The rule of lenity requires that criminal statutes be strictly construed a gainst the State. Id.
I

II. THE INSTRUCTIONS SUBMITTED CLASS D MISDEMEANOR STEALING Mr. Knox argues the circuit court improperly entered judgment against him on two counts of class A misdemeanor stealing because the misdemeanor instructions to the jury7 p roved only class D misdemeanors , not class A misdemeanors

. He admits he failed to object to circuit court’s error in entering judgment for two class A misdemeanors but
argues doing so was plain error because the six

- month sentences he received were in

exc ess of the only authorized punishment for a class D misdemeanor , which under section s 558.002 and 558.00 4 is a fine not to exceed $500

. Mr. Knox is correct. “Being sentenced to a punishment greater than the maximum sentence for an offense constitutes pl ain error resulting in manifest injustice.” State v. Russell, 59 8 S.W.3d 133, 136 (Mo. banc 2020)

. Missouri revised its criminal code effective January 1, 2017. Prior to this revision, section 570.030 .1 4 prov ided : “ 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. ” The remainder of section 570.030 set f orth va rious types of stealing which it categorized as class B or C felonies. Section 570.030. 3(1) , in particular,
made stealing a class C felony if “ [ t ] he value of the property or services appropriated is five hundred dollars or more but less than twenty

- five thousand dollars.” 5 Section
570.0 30. 9 made stealing of $25,000 or more a class B felony. Section 570.030. 10 created

4 All statutory refere nces in this paragraph are to the version of section 570.030 in effect from August 28, 2016, to December 31, 2016. 5 In State v. Bazell, 497 S.W.3d 263 , 267 (Mo. banc 2016) , this Court held that , because the definition of stealing in section 570.030.1 , RS Mo Supp. 2009, d id not make value an element of the crime of stealing, and because section 570.030.3(1) , RSMo Supp. 2009, state d that stealing was a class C felony only if value wa s an element of the offense , stealing under section 570.030.3(1) , RSMo Supp. 2009, was a class A misdemeanor, not a class C felony. See also State ex rel. Fite v. Johnson, 530 S.W.3d 508, 511 (Mo. banc 2017)

. The revisions to the statute effective in January 2017 removed the language requiring value to be an element of the crime of stealing for the crime to be felony8 a catch

- all category of class A misdemeanor s , stating, “ A

ny violation of this section for which no other penalty is specified in this section is a class A misdemeanor.” As the other sections of the statute provided no alternative penalty for stealing less than $500,

s tealing less th a n $500 was a crime for which “no other penalty is specified” and , therefore , was a class A misdemeanor

— the lowest

- level stealing offense. Id.
R

evision s to section 570.030 of the criminal code that became effective January 1,
2017

— 13 days before the crimes at issue here

— reduced stealing more than $25,000 from a class B felony to a class C felony under section 570.030.4 and replaced the class C
f elony of “stealing between $500 and $25,000 ” with the class D felony of “stealing property or services valued at “seven hundred fifty dollars or more” under section 570.030.5(1). The revised statute continue d to have a “catch

- all” category of class A mis demeanor s for stealing “ if no other penalty is specified in this section.” § 570.030.8

. Unlike its predecessors, however, the revision effective January 1, 2017 , for the first time created an offense of class D misdemeanor stealing , codified at section 5 70.030.7 , providing: The offense of stealing is a class D misdemeanor if the property is not of a type listed in [the preceding subsections , 6 ] the property appropriated has a value of less than one hundred fifty dollars, and the person has no previous fin dings of guilt for a stealing

- related offense. In attempting to apply these revised statutory provisions to the crimes of which the

stealing. § 570.030 , RSM o 2016

. 6 It is not disputed that the type of property stolen was not a type listed in and punishable under these preceding subsection s
.9 jury found Mr. Knox guilty, both the State and Mr. Knox recognize the jury did not make a finding as to the value of the wa tch the jury found Mr. Knox stole in finding him guilty of misdemeanor stealing in c ount III or of the wireless Bluetooth speaker the jury found
Mr. Knox stole in finding him guilty of misdemeanor stealing in c ount V. Mr. Knox argues that , because sectio n 570.030.8 specifically states that stealing is categorized as a class A misdemeanor only if no other penalty is specified in section
570.030 and because subsection 570.030.7 specifically states that stealing is categorized
as a class D misdemeanor if a f irst

- time stealing offender steals property valued at less than $150, this means the State must show the value of the property stolen was $150 or

more to convict a person of class A misdemeanor stealing under the revised statute. See §

§ 570.030. 7

- . 8

. Th e State makes the contrary argument that the revisions to section 570.030 effective January 1, 2017 , simply changed the class A misdemeanor category to any theft
of less than $750 rather than any theft of less than $500 but left class A as the “default”

cat egory for any misdemeanor stealing of items with a value of less than $750. It recognizes the 2017 statutory revisions included a new section 570.030.7 providing that stealing items worth less than $150 is a class D misdemeanor for first

- time stealing off enders

. T he State argues, however, that the legislature just intended this new section to give the State the option to charge a lesser offense if it wanted to do so and class A misdemeanor stealing still is the “default” offense if the value of the items stolen is not proved. The State says this gives it complete discretion whether to submit a class A misdemeanor just by choosing not to put on evidence of the amount stolen or that10 defendant has no previous stealing

- related offen ses . It argues that , if de fendant wants the offense “reduced” to a class D misdemeanor, it is up to defendant to prove he did not commit a class A misdemeanor by stealing things of $150 in value, as the “Constitution places no burden on the State to disprove facts that serve to mit igate a defendant’s
sentence.” This means, the State argues, the very lack of a finding of value by the jury
means Mr. Knox was convicted of a class A rather than a class D misdemeanor. The State’s argument ignores two important legal principles. First , “ [ t ] he s tate has the burden of proving every element of a crime beyond reasonable doubt.” State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010)

. T he defendant never has the burden of introducing evidence to lower the category of his or her crime or to p rove his or her innocence of a higher level of crime. 7 It is the State’s burden to prove every element of a crime charged. The State’s interpretation of section 570.030 defies common sense and the most basic pre cept s of criminal law

. Second, an amended statute “should be construed on the theory that the legislature intended to accomplish a substantive change in the law.” Sermchief v. Gonzales, 660 S.W.2d 683, 689 (Mo. banc 1983) . T he State’s interpretation of the revision effective January 1, 2017 , wo uld give no effect or purpose to the legislature’s adoption of a class D misdemeanor category of offense for stealing under $150. The revision, like the prior
versions of the statute, specifically requires that stealing qualifies as a class A misdemeanor only if no other penalty is specified in section 570.030. The legislature

7 There is no claim the statute makes lack of a pri or offense or the value of items stolen an affirmative defense or that it requires defendant to inject the issue of value before a11 amended section 570.030 to add a new subsection 7 that specifies the penalty for first

- time offenders who steal items valued at less than $150 is conviction for a class D
misdemeano r. “[A]ll provisions of a statute must be harmonized and every word, clause, sentence, and section thereof must be given some meaning.” Id. The State’s interpretation renders the classification of a class D misdemeanor a nullity. Courts may not interpr et statutes to render any provision a nullity because doing so would not give effect to the plain language of the statute.
A construction of the version of section 570.030 effective January 1, 2017 , that gives effect to all of its provisions is that section 570.030’s subsections are plainly mutually exclusive

— a penalty is either specified for certain conduct in the statute or the offense is a class A misdemeanor because “no other penalty is specified.” The statute specifies that first

- time stealing offen ders who are convicted of stealing an item with a value of less than $150 are guilty of a class D misdemeanor. § 570.030. 7

. Th e statute specifies that offenders who steal items worth $750 or more but less than $25,000 are guilty of a class D felony

. § 5 70.030. 5 (1)

. The statute does not specify a penalty for stealing items with a value of $150 or more but less than $750. Nor does the statute specify a penalty for stealing less than $150 when a defendant has a previous finding of guilt for a stealing

- rel ated offense. These, therefore, are the thefts that constitute class A
misdemeanors , for these are the thefts as to which “no other penalty is specified in this section.” § 570.030. 8

. Conversely, i f a penalty is specified

— as it is for stealing less than $150 when the defendant has no prior stealing convictions

— then, by definition, that

class D misdemeanor can be considered ; in fact , the statute does neither.12 conduct is not a class A misdemeanor. There is no overlap. This is, indeed, exactly how MAI

- C R 4th 424.02 .1 provides that misdemeanor stealing offenses should be submitte d. That instruction states that stealing is a class A misdemeanor when “the value of property or services appropriated is one hundred fifty dollars or more but less than seven hundred fifty dollars.” T o submit a class A misdemeanor, the instruction says to “specify that the property or service has a value of one hundred fifty dollars.” Id. Note on Use 3

. Conversely , the stealing is a class D misdemeanor when “property or services appropriated has a value of less than one hundred fifty dollars; and the p erson has no previous findings of guilt for a stealing

- related offense.” Id. If the State wants to submit a class A misdemeanor when the property is valued at less than $150, “evidence of the prior pleas or findings of guilt shall be proved to the

court outside the presence of the jury and the court must enter its findings thereon prior to submission of the case to the jury.” Id. Note on Use 4

. The instructions offered by Mr. Knox and submitted to the jury without objection by the State followed exactl y th e format required by MAI

- C R 4th 424.02

. The State offered no evidence of the stolen items’ value, and the instruction s accordingly submitted stealing without requiring the jury to find the value of the watch in Instruction 10 or the
value of the Bluet ooth speaker in Instruction 13. Instruction 10 stated: As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First , that on or about January 13, 2017 in the City of St. Louis, State of Missouri, the defendant retained a watch owned by [V.A.] , and13 Second, that defendant did so without consent of [V.A.] , and Third, that defendant did so for the purpose of withholding it from the owner permanently, and [sic] then you will find the defendant guilty under Count III of misde meanor stealing under this instruction.
Instruction 13 stated: As to Count V, if you believe from the evidence beyond a reasonable doubt: First, that on or about January 13, 2017 in the City of St. Louis, State of Missouri, the defendant retained a wire less Bluetooth speaker owned by [R.P.] , and Second, that defendant did so without the consent of [R.P.] , and Third, that defendant did so for the purpose of withholding it from the owner permanently, and [sic] then you will find the defendant guilty und er Count V of misdemeanor stealing under this instruction. The jury found Mr. Knox guilty of these two offenses. The elements set out in these instructions do not submit the value of the watch and speaker the jury found
Mr. Knox stole . The jury’s verdic t , therefore , supports only a judgment for two counts of class D misdemeanor stealing because the State failed to prove the items had a value of $150 or more
. 8
Mr. Knox concedes the instructions submitted the elements of class D misdemeanor stealing offens es and that the jury found him guilty of these offenses. He

8 On appeal, the parties spend substantial time arg uing about the theoretical question whether a class D misdemeanor is a lesser

- included offense of a class A misdemeanor. This Court does not address that argument because , below , both parties agreed on the instruction given to the jury without objection a nd the real issue on appeal is whether the circuit court could enter judgment against Mr. Knox for a class A misdemeanor based on the jury’s verdict.14 does not allege the evidence was insufficient to support these verdicts

. He does correctly note, however, that t he maximum punishment for a class D misdemeanor is a $500 fine , yet he was sentenc ed to six months on each count because the circuit court erroneously entered judgment for two class A misdemeanors. Accordingly, Mr. Knox’ s convictions for two class A misdemeanor stealing
offenses are reversed , and the case is remanded with directions t o resentence him for two counts of class D misdemeanor stealing

. IV. THE EVIDENCE SUPPORTS CONVICTION OF A CLASS D FELONY The jury also found Mr. Knox guilty under Instruction 6 , which stated that it should find Mr. Knox guilty of felony stealing if it found : First, that on or about January 13, 2013 in the City of St. Louis, State of Missouri, the defendant retained US currency and headphones owned by Jabari Turner, and Second, that the defendant did so without the consent of Jabari Turner, and Third, tha t defendant did so for the purpose of withholding it from the owner permanently, and Fourth, that the property retained had a combined value of at least seven hundred fifty dollars [.] As is evident, paragraph fourth of Instruction 6 required the jury to find “the property retained had a combined value of at least seven hundred fifty dollars

. ” The State and
Mr. Knox agree the State failed to present any evidence of the headphones’ value

. T he State argues, however, that the evidence that Mr. Knox stole $1 ,200 from Mr. Turner’s pocket is more than sufficient to show the combined value of the headphones and currency was $750 or more

. Mr. Knox counters he is not arguing that $1,200 is not more than $750 . Rather,15 ci

ting State v. McQuary, 173 S.W.3d 663, 668 (Mo. App. 2005) , he argues that , while a jury may make reasonable inferences from the evidence, it cannot draw inferences from
the total absence of evidence of an element of the offense. He argues that is what happened here, for the State failed to prove any money was stolen from Mr. Turner at all because it failed to ask Mr. Turner if the intruders stole the $1,200 they found in his pockets. Mr. Knox contends , absent such a statement, there is no factual basis upon which the jury could form an inference that any currency was stolen , a s an inference cannot be based on speculation. The jury was not required to resort to speculation to convict Mr. Knox. While it is difficult to perceive why the prosecutor did not specifically ask Mr. Turner whether the
in

truders stole the $1 , 200 they discovered while rummaging through his pocket, no magic words directly identifying the stolen property need be spoken if the theft of that property is otherwise shown by the evidence. W hen viewed in the light most favorable t o the verdict, the Mr. Turner’s testimony was sufficient to support a reasonable inference by the jury that $1 , 200 was taken from his pocket. Mr. Turner testified he had $1,200 in his pockets and the intruders searched his pockets as they tore apart his a partment , taking things of value. Just a few minutes after the theft, the police apprehended Mr. Knox at the apartment complex with $1,570 in cash on his person, as well as a number of specific items of personal property belonging to Mr. Turner

. Mr. Turn er also identified Mr. Knox as one of the intruders. Although Mr. Knox offered an alternative explanation for possessing a large amount of cash, a ppellate courts give “great deference to the trier of fact.” State v.16 Stover, 388 S.W.3d 138, 146 (Mo. banc 2012) . “All decisions as to what evidence the jury must believe and what inferences the jury must draw are left to the jury, not to judges deciding what reasonable jurors must and must not do.” State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014)

. T he jury was free to disbelieve Mr. Knox’ s explanation of the unusually large amount of cash he had on his person and to infer some of the cash found in Mr. Knox ’ s possession had just been stolen from Mr. Turner

. But Mr. Knox and the State agree it was error to enter judgment against Mr. Knox for class C felony stealing based on the jury’s finding that he stole items with a value of $750 or more. U nder the revision that went into effect January 1, 2017, stealing more than $750 is a class D felony. § 570. 0 30. 5(1)

. Because the five

- year suspended sentence Mr. Knox received was within the range permitted for a class D felony, Mr. Knox does not ask for resentencing but merely for entry of a nunc pro tunc order correcting the judgment to reflect he was convicted of a class D felony. “Clerical errors in the sentence and judgment in a criminal case may be corrected by order nunc pro tunc if the written judgment does not reflect what actually
was done.” State v. LeMasters, 456 S.W.3d 416, 426 (Mo. banc 2015) ; Rule 29.12(c)

. T

his Court directs the circuit court on remand to correct the judgment to reflect that
Mr. Knox was convicted of a class D , not a class C , felony

. V. CONCLUSION For the forgoing reasons, this Court reverses the judgment and remands the case with directions to the circuit court to correct the judgment to reflect convictions for a
class D felony stealing and two class D misdemeanors and to resentence Mr. Knox as17 prescribed in section s 558.002 and 558.004 to no more than a $500 fine for each mis demeanor offense

.

_________________________________ L AURA D ENVIR S TITH , J UDGE All concur.