IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI, )

)

Respondent, )

)

vs. ) WD77159

)

AMANDA N. BAZELL, ) Opinion filed: July 21, 2015

)

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY, MISSOURI

THE HONORABLE R. MICHAEL WAGNER, JUDGE

Before Division Two: Thomas H. Newton, Presiding Judge, 

Victor C. Howard, Judge and Mark D. Pfeiffer, Judge

Amanda Bazell appeals her convictions and sentences following a jury trial for burglary 

in the first degree, section 569.160, RSMo 2000, two counts of stealing firearms, one count of 

stealing over $500, and one count of stealing under $500, section 570.030, RSMo Cum. Supp. 

2013. She contends that the trial court abused its discretion in denying her request for a mistrial 

after a detective testified that he compiled a photo lineup from jail photos. Bazell also argues 

that the trial court plainly erred in accepting the jury’s verdict for two counts of stealing firearms 

and in sentencing her for both counts in violation of her right to be free from double jeopardy. 

Bazell’s convictions and sentences for first-degree burglary, one count stealing firearms, stealing 
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property over $500, and stealing property under $500 are affirmed. Her conviction and sentence 

for one count of stealing firearms is reversed.

Background

Bazell does not challenge the sufficiency of the evidence. The evidence, viewed in the 

light most favorable to the verdict, established that on Sunday morning, March 10, 2013, Bazell 

broke into the home of Phillip and Nancy Connaughton in Garden City, after the Connaughtons 

had left for church, and stole a Berretta Elite .40 caliber pistol, a Ruger .22 caliber rifle, and a 

laptop, jewelry box, suitcase, and two pairs of tennis shoes. Later in the morning, Bazell broke 

into the home of Mark and Veronica Stout in Pleasant Hill. Mrs. Stout was at church at the time, 

and Mr. Stout was sleeping in his bedroom. Mr. Stout woke when he heard his back door creak 

open and confronted Bazell in the dining room. Bazell said she was looking for Ashley to drop 

something off, and Mr. Stout said she had the wrong house. Mr. Stout continued to question 

Bazell as she headed back to her car. Mr. Stout got the license plate number on the car and 

called the police after Bazell left. Bazell stole three rings with a value of $8000 from the Stouts’ 

home.

Bazell was charged as a prior and persistent offender with two counts of first-degree 

burglary, three counts of felony stealing, and one count of misdemeanor stealing. The jury 

returned guilty verdicts for one count of first-degree burglary and all of the stealing counts. It 

was deadlocked on the remaining burglary count for the burglary of the Connaughton home, and 

the trial court declared a mistrial as to that count. The State subsequently dismissed that count 

nolle prosequi. The trial court sentenced Bazell to concurrent terms of twelve years 

imprisonment for the burglary, stealing firearms, and stealing over $500 convictions and one 

year in the county jail for the stealing under $500 conviction. This appeal by Bazell followed. 
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Photo Lineup

In her first point on appeal, Bazell claims that the trial court abused its discretion in 

denying her request for mistrial after a detective testified that he compiled a photo lineup from 

jail photos. She argues that the testimony constituted evidence of other crimes and violated her 

right to be tried only for the offense charged and destroyed the presumption of innocence.

A mistrial is a drastic remedy reserved for the most extraordinary circumstances, and the 

decision whether to grant one is left to the trial court’s sound discretion. State v. Shaffer, 439 

S.W.3d 796, 801 (Mo. App. W.D. 2014). “A mistrial should only be granted when the prejudice 

to the defendant cannot be removed in any other way.” Id.

Generally, evidence of the commission of separate and distinct crimes is not admissible 

unless it has some legitimate tendency to directly establish the defendant’s guilt of the charged 

crime. State v. McFadden, 369 S.W.3d 727, 741 (Mo. banc 2012). Evidence of other crimes, 

when not properly related to the cause on trial, violates a defendant’s right to be tried only for the

offense charged. State v. Vorhees, 248 S.W.3d 585, 587 (Mo. banc 2008). But vague or 

speculative references to the defendant’s involvement in other crimes do not violate this right. 

State v. Taborn, 412 S.W.3d 466, 473 (Mo. App. W.D. 2013). To violate the rule against the 

admission of evidence of other crimes, the evidence must show that the defendant committed, 

was accused of, was convicted of, or was definitely associated with the other crimes or 

misconduct. Id. Vague references are not clear evidence associating a defendant with other 

crimes. Id. The defendant has the burden to show that the challenged testimony constituted 

evidence of other crimes. State v. Clark, 112 S.W.3d 95, 100 (Mo. App. W.D. 2003). 

Testimony concerning the use of a mug shot that discloses information that a defendant has 

committed other crimes is improper. State v. Wright, 978 S.W.2d 495, 498 (Mo. App. W.D. 
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1998)(it is the defendant’s burden to show that the use of the term “mugshot” constituted 

evidence of prior crimes). 

Regarding a photo lineup shown to a witness in this case, a detective testified as follows:

Q: And so you prepared a photo lineup in this case; right?

A: That’s correct.

Q: And you said it included Amanda Bazell?

A: Yes, it did.

Q: How do you typically prepare a photo lineup? Where do you draw photos 

from?

A: I draw them either from jail photographs or through Department of Revenue 

driver’s license photos.

Q: And in this case you pulled them from the Department of Revenue; isn’t that 

right?

A: That’s true.

Q: And how many photos did you pull?

A: Six.

Q: You mentioned that in a photo lineup you want the individuals to have similar 

features?

A: Yes, they did.

Q: Is there any sort of program that does that for you?

A: I just essentially go through our jail system and locate the number of 

individuals that have similar characteristics to the one that I am looking for.

Q: But from the Department of Revenue, you said these were pulled?

A: These were pulled from the Department of Revenue. The initial—the initial 

information afforded to the photographs was drawn from previous jail photos.
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Soon thereafter, defense counsel requested a mistrial arguing that the detective testified that the 

photo shown of the defendant was a jail photo, which suggested other crimes. The trial court 

denied the request. The prosecutor then offered the photo lineup into evidence and continued to 

question the detective about it:

Q: [I]s that a fair and accurate depiction of the lineup that you showed to her? Is 

this the actual copy of it?

A: Yes, that’s it.

Q: And is one of these photos Amanda Bazell?

A: Yes, it is.

Q: And if you flip through here, which photo is the photo of her?

A: Photo Number 3.

Q: I am looking at here what is marked as Photo Number 1; is that right?

A: Yes.

Q: Here we have Photo Number 2.

A: Yes. 

Q: Photo Number 3 and that is the photo that you pulled of Amanda Bazell.

A: Yes, it is.

Q: Now, did you pull that from the Department of Revenue records?

A: Yes, I did.

Q: And all of these other photos, did you pull those from the Department of 

Revenue records?

A: Yes, I did.

Bazell failed to show that the detective’s testimony was evidence of other crimes. The 

detective repeatedly explained that he obtained Bazell’s and all of the photos in the photo lineup 
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from the Department of Revenue records. While he explained that he used the jail photo system 

to find other people with similar characteristics to Bazell to fill out the rest of the lineup, his

testimony did not establish that Bazell’s photo was in the jail system or that he used the jail 

system to find her photo. The detective’s testimony did not show that Bazell committed, was 

accused of, was convicted of, or was definitely associated with other crimes or misconduct. The 

vague references to the jail photo system did not clearly associate Bazell with other crimes. The 

trial court did not err in denying Bazell’s request for a mistrial. Point denied. 

Double Jeopardy

In her next point on appeal, Bazell contends that the trial court plainly erred in accepting 

the jury’s verdict for two counts of stealing firearms and in sentencing her for both counts in 

violation of her right to be free from double jeopardy. She contends that under the charging

statute, section 570.030.3, stealing two firearms in the course of one burglary constitutes a single 

offense. 

Bazell concedes that she failed to raise her double jeopardy claim in the trial court and 

requests plain error review. Generally, a constitutional issue must be raised at the earliest 

opportunity to be preserved for appellate review. State v. Liberty, 370 S.W.3d 537, 546 (Mo. 

banc 2012). However, “the right to be free from double jeopardy is a constitutional right that 

goes ‘to the very power of the State to bring the defendant into court to answer the charge 

brought against him.’” Id. (quoting Blackledge v. Perry, 417 U.S. 21, 30 (1974), overruled on 

other grounds by Bordenkircher v. Hayes, 434 U.S. 357 (1978)). Thus, an appellate court 

reviews for plain error when it can determine from the face of the record that the trial court had 

no power to enter the conviction. Id.
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“The double jeopardy clause protects a defendant both from successive prosecution for 

the same offense and from multiple punishments for the same offense.” State v. Roggenbuck, 

387 S.W.3d 376, 381 (Mo. banc 2012). Bazell argues that her two convictions for stealing two 

different firearms from the same house constitute multiple punishments for one offense. Double 

jeopardy analysis regarding multiple punishments is limited to determining whether cumulative 

punishments were intended by the legislature. Id.; Liberty, 370 S.W.3d at 546-47. “To 

determine whether the legislature intended multiple punishments, a court looks first to the ‘unit 

of prosecution’ allowed by the statutes under which the defendant was charged.” Liberty, 370 

S.W.3d at 547 (internal quotes and citation omitted). If the charging statute does not 

unambiguously express the permissible unit of prosecution, the rule of lenity resolves doubts 

about the intended unit in favor of the defendant. Id. “But the rule of lenity applies to 

interpretation of statutes only if, after seizing everything from which aid can be derived, the 

court can make no more than a guess as to what the legislature intended.” Id. (internal quotes 

and citation omitted). 

A person commits the crime of stealing if “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.” § 570.030.1. Stealing is a class C felony if “[t]he property 

appropriated consists of...[a]ny firearms.” § 570.030.3(3)(d). The State concedes that the 

statutory language “any firearms” is itself ambiguous as to the allowable unit of prosecution 

because it could reasonably be interpreted to permit either a single prosecution or multiple 

prosecutions for a single incidence of stealing multiple firearms. See Liberty, 370 S.W.3d at 548 

(prohibition in section 573.037, RSMo Cum. Supp. 2007, against possession of “any obscene 

material” is ambiguous because it reasonably could be interpreted to permit either a single 
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prosecution or multiple prosecutions for a single incidence of possession of eight still 

photographs of child pornography); State v. Baker, 850 S.W.2d 944 (Mo. App. E.D. 

1993)(statutory prohibition against possession of “any” weapon in correctional facility is 

ambiguous as to allowable unit of prosecution). “But before finally deciding that a statute is 

ambiguous, a court is permitted to apply rules of statutory construction, for the rule of lenity ‘in 

no wise implies that language used in criminal statutes should not be read with the saving grace 

of common sense with which other enactments, not cast in technical language, are to be read.’” 

Liberty, 370 S.W.3d at 549 (quoting Bell v. United States, 349 U.S. 81, 83 (1955)). Thus, a court 

“will use relevant rules of construction to determine whether the otherwise ambiguous term ‘any’ 

can be clarified as to whether, in context, the legislature did or did not intend to allow multiple 

punishments.” Id. 

In determining legislative intent, it is fundamental that a section of a statute should not be 

read in isolation from the context of the whole act.” State v. Salter, 250 S.W.3d 705, 711 (Mo. 

banc 2008); State v. Haskins, 950 S.W.2d 613, 615 (Mo. App. S.D. 1997). “A statute’s 

provisions must be construed and considered together and, if possible, all provisions must be 

harmonized and every clause given some meaning.” State v. Moore, 952 S.W.2d 812, 813 (Mo. 

App. E.D. 1997). “Related clauses are considered when construing a particular portion of a 

statute.” State v. Sledd, 949 S.W.2d 643, 646 (Mo. App. W.D. 1997). “It is presumed that the 

legislature intended that every word, clause, sentence, and provision of a statute have effect.” 

State v. Downing, 359 S.W.3d 69, 71 (Mo. App. W.D. 2011)(internal quotes and citation 

omitted). Conversely, it will be presumed that the legislature did not insert idle verbiage or 

superfluous language in a statute.” Id. (internal quote and citation omitted).
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The State argues that section 570.030.3 shows a legislative intent to more harshly punish 

those who put the public in jeopardy by stealing firearms, which is more fully achieved by 

allowing the State to separately prosecute the theft of each individual firearm. The State is 

correct that subsection 3 designates the theft of specific property, including firearms, for 

enhancement from a class A misdemeanor to a class C felony. However, increasing the penalty 

for theft of firearms does not necessarily show that the legislature intended multiple punishments 

for the theft of each firearm. 

More importantly, the State ignores subsection 6 of section 570.030, which further 

elaborates on the unit of prosecution for the theft of specific property listed in subsection 3 and 

which must be considered in construing subsection 3. Section 570.030.6 provides, “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.” 

This provision shows the legislature’s clear intent for punishment for the theft of each firearm 

with a value over five hundred dollars. Specifically designating the theft of property listed in 

subsection 3 valued at over $500 to be considered separate felonies and not so designating the 

theft of property valued at $500 and less reflects a legislative intent that theft of the latter are not 

separate felonies and may not be charged in separate counts. Had the legislature desired separate 

punishment for the theft of each firearm under that value, it could have expressly provided 

similar language as that in subsection 6 or utilized the singular “a” instead of “any” or the 

singular formulation of “firearm.”

1

 It, however, did not do so.

 

1 Despite the use of the term “any” in statute, where evidence distinguishes offenses by showing that the crimes 

were separated by time or location or by showing different types of offenses or items, multiple convictions may be 

permitted. See State v. Roggenbuck, 387 S.W.3d 376 (Mo. banc 2012)(where, in contrast to the facts in Liberty, the 

evidence showed that defendant acquired possession of five different photos at five different points of time, each act 

of acquisition and possession was temporally distinguishable and constituted separate act in violation of section 

573.037); State v. Williams, 542 S.W.2d 3 (Mo. App. 1976)(multiple drug convictions under statute prohibiting 

possession of “any controlled or counterfeit substance” were permissible because defendant possessed two different 
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Subsection 6 clarifies the otherwise ambiguous phrase “any firearms.” Read as a whole, 

section 570.030 shows a legislative intent to not allow multiple punishments for a single 

incidence of theft of multiple firearms not valued over $500. The statute is not ambiguous as to 

the unit of prosecution in this case. The State did not allege a value of the firearms in the 

charging document and did not prove a value at trial. Convictions on Counts 3 and 4 for stealing

firearms violated Bazell’s constitutional right to be free from double jeopardy. The trial court 

plainly erred in entering judgment on both counts, and manifest injustice will result if both 

convictions are allowed to stand. Accordingly, Bazell’s conviction under Count 4 for theft of

firearms is reversed.

Bazell’s convictions and sentences for first-degree burglary, one count stealing firearms, 

stealing property over $500, and stealing property under $500 are affirmed. Her conviction and 

sentence for one count of stealing firearms is reversed.

__________________________________________

VICTOR C. HOWARD, JUDGE

All concur.

 

types of drugs—heroin and marijuana—which required the State to prove different elements for the distinct drugs 

underlying the charges).