STATE v. PRITCHETT (2025)

Opinion

This criminal case began after Appellant Eric Pritchett was caught by police while stealing from a car dealership located within the City of St. Louis. After a trial, the jury convicted Pritchett of burglary second degree under section 569.170, and misdemeanor stealing under section 570.030.7-8.¹ Pritchett raises two points on appeal. First, Pritchett argues that the evidence was insufficient to establish that he had stolen property valued at $150 or more—a threshold element for a class A misdemeanor stealing. Second, it was plain error for the court to enhance Pritchett's sentence as a persistent offender where the Respondent State of Missouri did not plead Pritchett as a persistent offender. We reverse in part and affirm in part. Regarding the stolen property value, the State failed to submit evidence that the collective value of the stolen property was $150 or greater, the amount required for committing a class A misdemeanor thus requiring reversal. For the sentence enhancement, we decline to exercise plain error review because Pritchett was on notice the State was seeking to enhance his sentence.

Background

In February 2022, Pritchett broke into a car dealership by pushing an air conditioning unit through the window, causing it to drop to the floor. Among other items, he stole five key fobs including one paired to a new 2022 Chevy Silverado pickup truck owned by the dealership and housed inside the garage. While inside, Pritchett moved a number of tools located inside the dealership into the pickup truck paired with the functioning key fob and he unsuccessfully attempted to break the garage door lock, damaging it in the process.²

After receiving a report of a prowler, police responded to the dealership and apprehended Pritchett. Police searched Pritchett, seized the five key fobs, found the tools and also recovered an employee's shirt. Police immediately identified one of the fobs as programmed to the pickup truck containing the misappropriated tools. No one identified the other four key fobs, explained their origin or most importantly attributed any value to the items. The State and its witnesses simply dismissed the keys as extras, duplicates or keys from previous customers.

The State charged Pritchett with three offenses: burglary second-degree; property damage second degree for allegedly damaging the door lock and forcing the air conditioner through the window, and a single count of stealing, a class A misdemeanor, for removing “several key fobs, of a value of more than one hundred fifty dollars.”³ The State never alleged that Pritchett stole any other items. Neither the indictment nor the information identified Pritchett's status as a prior and persistent offender, failing to mention his criminal history.⁴

At trial, the State did not introduce any evidence regarding the key fobs’ value. After the State rested, Pritchett moved for a judgment of acquittal, arguing at a sidebar that the State had failed to submit evidence proving that the stolen key fobs’ value was $150 or greater, the threshold amount for a class A misdemeanor. In response, the State argued that “[i]t's common knowledge these days to replace one of those is at minimum probably $99 ․ [and] the jury can certainly use their common-sense and knowledge of the technology today that the total amount together would exceed or reach at least $150.” The circuit court denied Pritchett's motion.

After the State rested, the circuit court took judicial notice that Pritchett was a prior and persistent offender. Pritchett made no objection at that time that his status as a prior and persistent offender was not pled in the indictment or information. The jury found Pritchett guilty of burglary and stealing, but acquitted him of property damage to the garage door lock and the air conditioner. Pritchett renewed his motion for judgment of acquittal, also requesting a new trial as an alternative form of relief. Again, he argued that there was insufficient evidence to support the jury's finding that the key fobs had a value of $150 or greater but did not argue that the court lacked authority to charge him as a persistent offender. The circuit court denied Pritchett's motion and sentenced him to ten years in the Missouri Department of Corrections for count one concurrent with one year in jail for count three. This appeal follows.

The Evidence Was Insufficient to Prove the Stolen Key Fobs’ Value Was $150 or Greater

Pritchett argues there was insufficient evidence to support a jury finding that the stolen key fobs were worth $150 or more because the State failed to put forth any evidence regarding the retail, purchase, market or replacement price. The State argues the jury could properly determine value without the benefit of any additional evidence. We reverse because the State failed to present any evidence proving the stolen key fobs were worth $150 or more.

Standard of Review

On a claim of insufficient evidence, this court reviews “whether a reasonable juror could find each of the elements beyond a reasonable doubt.” State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993). Evidence is viewed in the light most favorable to the State. Id. All evidence and inferences favorable to the verdict are to be accepted as true while all contrary evidence and inferences are to be disregarded. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (citing State v. Bateman, 318 S.W.3d 681, 686-87 (Mo. banc 2010)). “This Court ‘may not supply missing evidence, or give the [State] the benefit of unreasonable, speculative or forced inferences.’ ” State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001) (quoting Bauby v. Lake, 995 S.W.2d 10, 13 n.1 (Mo. App. E.D. 1999)). Under Missouri law, a defendant can be convicted of a class D misdemeanor of stealing when the value of the stolen property is less than $150. Section 570.030.7.

Analysis

To convict Pritchett of stealing class A misdemeanor, the State was required to prove that the value of the stolen key fobs was $150 or more. Section 570.030.7-8. For the purposes of the conviction

“value” means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime. If the victim is a merchant, and the property is a type that the merchant sells in the ordinary course of business, then the property shall be valued at the price that such merchant would normally sell such property;

Section 570.020(1).

After reviewing the record and considering these legal principles, we hold that it was impermissible speculation for the jury to find that the stolen key fobs’ value was $150 or more when the State failed to present any evidence. The State had numerous avenues to establish the value of the key fobs. The market value could have been evaluated using “the [key fobs’] purchase price, the amount of time between the [key fobs’] purchase and its theft, and its condition when stolen.” State v. Smith, 504 S.W.3d 894, 896-97 (Mo. App. W.D. 2016). If the dealership “sold [key fobs] on a more or less daily basis” the retail price could have been used. State v. Morgan, 807 S.W.2d 209, 210 (Mo. App. E.D. 1991). The financial controller for the dealership could have testified about his opinion of how much the key fobs were worth, even without any experience in making such valuations. See State v. Reilly, 674 S.W.2d 530, 533 (Mo. banc 1984).

Further complicating the State's case, it is unclear what if any ownership interest the dealership claimed in four of the five key fobs or if these items were even properly functioning. In other words, the State's witnesses did not conclusively determine the origins of four key fobs and essentially disclaimed any ownership interest even though Pritchett stole them from inside the dealership. The testimony indicates that the dealership was unclear if the four key fobs even belonged to the dealership or possibly were the property of customers, assuming they even worked. Regardless, value was not proven for any key fobs.

In the absence of evidence establishing value, juries are not permitted to speculate on potential value. See, e.g., State v. Watkins, 804 S.W.2d 859, 861 (Mo. App. E.D. 1991) (“Nor, in the absence of any proof of value, could the jury be permitted to speculate on [value] merely from the appearance of the articles.” quoting United States v. Wilson, 284 F.2d 407 (4th Cir. 1960)). For example, in State v. Watts, 688 S.W.3d 632, 634 (Mo. App. W.D. 2024), a working vehicle was stolen. No testimony was elicited regarding the vehicle's value. Id. The only evidence available to the jury was the approximate age of the vehicle and that it functioned well enough to drive one mile. Id. at 636. The court held there was insufficient evidence for the jury to make a determination on value. Id. (“In such circumstances, there was no basis for the jury to find that the vehicle had a value of $750 or more, other than sheer speculation.”).

The State argues the jury could infer the value of the key fobs based on “common sense and life experiences.” State v. Johnson, 461 S.W.3d 842, 845 (Mo. App. E.D. 2015). The State asserts that it is “common knowledge these days to replace one of those [key fobs] is at minimum probably $99.” However, replacement value is only permitted when “the market value of the property at the time and place of the crime ․ cannot be satisfactorily ascertained.” Section 570.020; see also State v. Slocum, 420 S.W.3d 685, 688 (Mo. App. E.D. 2014) (“[R]eplacement costs did not establish the value of the stolen items because there was no evidence that their market value was not ascertainable.”) (citations omitted). Even if replacement value would be permissible in this case, there was not any testimony establishing the replacement value of the key fobs. As a result, the jury was forced to make a number of impermissible, speculative inferences to determine replacement value. To begin, the jury was forced to speculate that the four unidentified key fobs were functional, as the only operational key fob was the identified fob linked to the new pickup truck.

The State argues that “[m]odern key fobs are widely known to be technologically complex and expensive to replace due to their need to be programmed for the vehicle.” To accept the State's contention, the jury was forced to speculate as to whether the unidentified key fobs were programmed to specific vehicles, whether the dealership owned those vehicles or if those key fobs would need to be reprogrammed anyway. If the vehicles had already been sold and were no longer in the possession of the dealership, any value inherent in the key's previous programming would be lost. Finally, the jury had to speculate that the dealership did not have a cheaper process to program the keys themselves. Certainly, it is likely, and even probable that the value of the key fobs was more than $150, but the State failed to present this evidence through its witnesses. In the absence of any evidence regarding the value of the keys, there is insufficient evidence to support a conviction for class A misdemeanor stealing.

The lesser-included offense of stealing class D misdemeanor does not require evidence of value; therefore, all of the elements were proven in the trial below. Pritchett does not dispute that the elements of stealing class D misdemeanor were proven. “Where a conviction of a greater offense has been overturned for insufficiency of the evidence, the reviewing court may remand for entry of a conviction on the lesser-included offense if the evidence was sufficient for the jury to find each of those elements in reaching its verdict on the greater offense.” State v. Cobbins, 21 S.W.3d 876, 879-80 (Mo. App. E.D. 2000) (citing State v. Trotter, 5 S.W.3d 188, 194 (Mo. App. W.D. 1999)). We remand for entry of judgment and sentencing as a class D misdemeanor. Point granted.

We Decline to Review the Circuit Court's Decision to Enhance Pritchett's Sentence

Pritchett did not raise his second point before the circuit court and now requests this court review for plain error. Pritchett argues that it was error for the circuit court to enhance his sentence as a persistent offender under Section 558.021 because the court lacks authority to enhance a sentence unless the State pleads a defendant is a persistent offender in the indictment or information. Pritchett asserts that the State failed to plead that he was a prior and persistent offender and therefore it was manifest injustice to enhance his sentence as a persistent offender. We decline to exercise plain error review because Pritchett was on notice of the State's intent to enhance his sentence.

Standard of Review

“Plain error review is discretionary and involves two steps: first, we must determine whether the trial court committed evident, obvious, and clear error affecting the defendant's substantial rights; second, if plain error is found, we then consider whether the error actually resulted in manifest injustice or a miscarriage of justice.” State v. Weyant, 598 S.W.3d 675, 678 (Mo. App. W.D. 2020) (quoting State v. Berry, 506 S.W.3d 357, 362 (Mo. App. W.D. 2016)).

Analysis

This court has previously held it is both plain error and manifest injustice to enhance a sentence without first pleading persistent offender status in the indictment or information. State v. Hall, 472 S.W.3d 207, 211 (Mo. App. E.D. 2015) (citing State v. Nesbitt, 299 S.W.3d 26, 30 (Mo. App. E.D. 2009)). If applied as an inflexible rule, this creates a perverse incentive encouraging defendants to allow the trial court to commit error as a strategic choice.⁵

We now hold that when there is sufficient evidence on the record that a defendant was on notice of the State's intention to enhance a sentence using persistent offender status and the defendant failed to object, an appellate court is within its discretion to decline plain error review. Contra Nesbitt, 299 S.W.3d at 30 (“Where it appears that the trial court improperly sentenced the defendant as a prior or persistent offender, plain-error review is appropriate.” (citing State v. Manley, 223 S.W.3d 887, 892 (Mo. App. W.D. 2007))).

The record clearly demonstrates that Pritchett was on notice about his prior convictions and he was aware that the State intended to prove Pritchett was a persistent offender. Pritchett filed a pretrial motion in limine requesting that the court prohibit the state from presenting any evidence of his prior convictions during the course of the trial. Pritchett's knowledge of his criminal history and understanding of its impact on sentencing was reinforced by his attorney. He further supplemented the argument on the record, reminding the court that “jury sentencing isn't available” when referring to the statute that requires the court to sentence the defendant if he has pled guilty or been found guilty of a felony in a previous proceeding. Section 557.036.4(2). This demonstrates that Pritchett knew the State intended to prove his prior offender status, removing sentencing from the jury. Pritchett had ample notice, time and opportunity to object to the enhanced sentence based on the State's failure to plead his persistent offender status. We exercise our discretion to decline to perform plain error review. Point denied.

Conclusion

We remand to the circuit court for further proceedings consistent with this opinion.

FOOTNOTES

1.   All statutory references are to the Revised Statutes of Missouri (2016).

2.   The State did not charge Pritchett with stealing or attempt stealing the tools even though he transferred them into the pickup truck.

3.   Stealing property valued between $150 and $750 is a class A misdemeanor, punishable by a $2,000 fine and/or up to one year in jail. Sections 558.002; 558.011; 570.030. Stealing property valued under $150 is a class D misdemeanor, punishable by a $500 fine. Sections 558.002; 570.030.

4.   Pritchett pled guilty on May 6, 2008 to attempted victim tampering, a class C felony, in cause 07BB-CR01207-01 and again pled guilty on the same day to three counts of damage to jail property, a class B felony, in cause 08BB-CR00054-01.

5.   For example, assume a defendant is aware that the State intends to enhance their sentence based on persistent offender status without having first included the requisite pleading. If the defendant in this scenario objects, the State can file a motion to amend the indictment or information, curing the error and subjecting the defendant to an enhanced sentence. McBenge v. State, 657 S.W.3d 268, 273 (Mo. App. E.D. 2022) (citations omitted). If the defendant does not object, and the State does not amend the pleadings, the defendant can raise an appeal which merits automatic reversal under Nesbitt. Nesbitt, 299 S.W.3d at 30.

THOMAS C. CLARK II, J.

Renee D. Hardin-Tammons, P.J. and Angela T. Quigless, J., concur.