S. P., Appellant, v. ST LOUIS COUNTY CIRCUIT COURT (2019)

MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)

This memorandum is for the information of the parties and sets forth the reasons for our order affirming the judgment.

THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.

S. P. (“Appellant”) appeals from the trial court's judgment expunging one case record and dismissing her request to expunge three additional cases pursuant to Section 610.140, RSMo.¹ We affirm.

I. Background

The parties are familiar with the facts of this case; thus, we proceed directly to Appellant's point on appeal.

II. Discussion

In her sole point on appeal, Appellant alleges the trial court erred in applying the analysis of “continuous course of conduct” in Section 610.140, from double jeopardy jurisprudence, and subsequently dismissing Appellant's Petition for Expungement as to three felony convictions. Appellant argues that Missouri courts have not defined “continuing course of conduct” in Section 610.140, since its revision was enacted on January 1, 2018, and double jeopardy jurisprudence should not have been applied so that all of Appellant's felony convictions should have been expunged.

A. Standard of Review

In reviewing a court-tried case, we affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Perkins v. Bridgeton Police Dept., 549 S.W.3d 504, 506 (Mo. App. E.D. 2018). Here, the circuit court's judgment is based on its construction of Section 610.140. Because statutory construction is purely a question of law subject to independent de novo review, we give no deference to the circuit court's determination of law. Id.

B. Analysis

Appellant filed her Petition for Expungement on February 28, 2018, naming the arresting jurisdictions as well as the Criminal Records Repository, St. Louis County Prosecuting Attorney's Office, and the St. Louis County Police Department (collectively, “Respondents”) as respondents in the action, asking the trial court to expunge nine separate cases. But at the April 25, 2018 hearing, she proceeded on only four of the felony convictions from April 23, 2004, and dismissed the remaining counts. The counts she sought to have expunged pursuant to Section 610.140 were as follows:

1) Cause No. 2198R-06494-01 – one count of the class D felony of passing a bad check, in violation of Section 570.120, from an offense in Florissant on December 14, 1996;

2) Cause No. 2197R-03546-01 – three counts of the class D felony of passing a bad check, in violation of Section 570.120, from an offense in University City on December 9, 1996;

3) Cause No. 2197R-01037-01 – one count of the class D felony of passing a bad check, in violation of Section 570.120, from an offense in Creve Couer on December 13, 1996; and

4) Cause No. 2197R-00141-01 – one count of the class D felony of passing a bad check, in violation of Section 570.120, from an offense in Pine Lawn on January 2, 1997.

The execution of Appellant's sentence of five years on each count was suspended with five years of probation, and she successfully completed the probation on April 23, 2004.

Appellant argued that the four convictions arose from the same course of criminal conduct as defined by Section 565.002, in that all checks were drawn from the same account, for the same purpose, within a 30-day period. Respondents moved to dismiss because Appellant is limited to one felony expungement by Section 610.140.12(2), and the “course of conduct” argument did not apply because Appellant's conviction arose from acts on four distinct dates in four different locations. The trial court issued its final judgment on May 25, 2018, granting Appellant's Petition for Expungement of the three offenses from Cause No. 2197R-03546-01, and dismissing Appellant's petition on the other cause numbers. We agree with the trial court.

Section 610.140.12 provides that a person may be granted no more than one expungement of a felony offense under this section, with certain exceptions. Another subsection of the statute states,

If the offenses, violations, or infractions were charged as counts in the same indictment or information or were committed as part of the same course of criminal conduct, the person may include all the related offenses, violations, and infractions in the petition, regardless of the limits of subsection 12 of this section, and the petition shall only count as a petition for expungement of the highest level violation or offense contained in the petition for the purpose of determining future eligibility for expungement.

Section 610.140.1. Appellant argues that the “course of conduct” term is not defined in this statute, but should be analyzed under Section 565.002, which states, “course of conduct” is “a pattern of conduct composed of two or more acts, which may include communication by any means, over a period of time, however, short, evidencing a continuity of purpose ․” Section 565.002.4. Appellant adds that the federal sentencing guidelines also define “course of criminal conduct” in that “certain behaviors to be considered part of the same course of conduct as the offense of conviction for purposes for Guideline § 1B1.3(a)(2), there must be a sufficient logical relationship and temporal proximity between the behavior and the offense of conviction to constitute a pattern of criminal conduct.” U.S. v. Lewis, 998 F.2d 497 (7th Cir. 1993) (citing U.S. v. Caicedo, 937 F.2d 1227 (7th Cir. 1991)).

However, here, Appellant failed to meet her burden to prove even that her acts consisted of a pattern evidencing the “continuity of purpose” she argues. Instead, Appellant testified that she had different purposes for committing the illegal acts of passing bad checks, including purchasing personal items, purchasing groceries, and obtaining cash to pay rent. This alone is sufficient to find the trial court's judgment was proper in finding that there was no course of conduct in passing all of the bad checks. Moreover, we find the “continuing course of criminal conduct” regarding double jeopardy relied upon by the trial court in State v. Barber, 37 S.W.3d 400 (Mo. App. E.D. 2001), also further disqualifies Appellant's additional violations from expungement by the circuit court. In a double jeopardy analysis on whether a defendant's conviction and/or sentencing for multiple actions constitute part of a continuing course of conduct, the Missouri legislature has prohibited prosecution of more than one offense for the same act “if the offense is defined as a continuing course of conduct and the person's course of conduct was uninterrupted.” Id. at 404, citing Section 556.041(4). “Where the defendant has the opportunity to reconsider his actions, a crime is separated in time.” Id. Thus, Appellant's six individual acts occurring on four separate dates, in four separate municipalities, and over a 20-day period (from December 9, 1996, to January 2, 1997) were not a continuing course of conduct.

Finally, even under the statute of which Appellant was found guilty, Section 570.120 is contrary to a finding that Appellant's acts were part of a continuing course of conduct. The statute provides that “face amounts of any bad checks passed pursuant to one course of conduct within any ten-day period may be aggregated in determining the grade of the offense.” Section 570.120.3, RSMo (1993). Whereas the “course of conduct” to aggregate check amounts in order to enhance the offense is only a ten-day period, but Appellant's acts occurred over a 20-day period, they would not qualify as a “course of conduct” pursuant to Section 570.120 either.

Appellant cannot show that her three separate convictions of passing bad checks were part of the same course of criminal conduct. Whereas Appellant's three convictions were ineligible for expungement because they violated the rule prohibiting expungement of more than one felony conviction, the trial court properly dismissed Appellant's Petition for Expungement on the three felony convictions for passing a bad check.

III. Conclusion

The trial court's judgment is affirmed pursuant to Rule 84.16(b).

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Revised Statutes of Missouri in effect on January 1, 2018.

PER CURIAM.