State of Missouri v. Brian Keith Heathcock

• Court: Missouri Court of Appeals
• Decided: July 16, 2024
• Docket: ED111834
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION THREE

STATE OF MISSOURI, ) No. ED111834 ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of Warren County vs. ) No. 18BB-CR00732-01 ) BRIAN KEITH HEATHCOCK, ) Honorable Jason H. Lamb ) Defendant/Appellant. ) Filed: July 16, 2024

The defendant, Brian Keith Heathcock, appeals the judgment and sentence entered by the

Circuit Court of Warren County following his conviction by a jury of first-degree tampering with

a motor vehicle, in violation of section 569.080 RSMo. (2016). 1 Defendant contends that his

prosecution in Warren County violated his right to be free of double jeopardy because he had

already pled guilty to first-degree tampering by unlawfully operating the same vehicle, owned by

the same victim, on the same date in Montgomery County. The jury also convicted Defendant of

resisting arrest by fleeing, in violation of section 575.150; and attempted victim tampering, in

violation of section 575.270. The trial court sentenced Defendant as a persistent felony offender

to a total of 10 years of imprisonment, including a sentence of five years for first-degree

tampering.

1 All statutory references are to RSMo. (2016) except as otherwise indicated. We conclude that the State’s prosecutions of Defendant in Montgomery County and

again in Warren County constituted successive prosecutions for the same offense of first-degree

tampering, resulting in multiple punishments for the same offense. As such, the State’s

prosecution in Warren County violated the prohibition against double jeopardy contained in the

Fifth Amendment to the U.S. Constitution. We reverse Defendant’s conviction for first-degree

tampering in Warren County, and vacate his sentence for that offense. Defendant has not

challenged his conviction and sentences for resisting arrest and attempted victim tampering, and

thus, we affirm the trial court’s judgment in all other respects.

Factual and Procedural Background

Defendant’s argument challenges the sufficiency of the evidence to convict him of a

separate tampering offense in Warren County. Viewed in the light most favorable to the jury’s

verdict, the following evidence was adduced at trial. State v. Mason, 616 S.W.3d 345, 347 (Mo.

App. E.D. 2020).

Defendant and B.R. were in a romantic relationship. At about 5:00 p.m. on September 25,

2018, B.R. was driving her vehicle, a silver Hyundai Santa Fe, east on the I-70 outer road in

Montgomery County, and Defendant was a passenger in the vehicle. B.R. and Defendant argued,

B.R. pulled to the side of the road, and exited the vehicle. When B.R. eventually returned to the

vehicle, she allowed Defendant to drive. Soon thereafter, Defendant thought that B.R. was using

her phone to record him. Defendant threw B.R.’s phone out the window, slowed the vehicle

enough for B.R. to jump out to retrieve her phone, then drove away without B.R.’s consent,

leaving her stranded on the I-70 outer road. B.R. eventually obtained a ride from a passerby,

contacted police, and telephoned her parents. B.R. reported the vehicle as stolen, and a

description of the vehicle was broadcast to law enforcement.

2 A Warren County Sheriff’s deputy on duty the night of September 25, 2018 received a

report of the stolen silver Hyundai Santa Fe. 2 At 8:41 p.m., the deputy also received a report of a

vehicle matching the same description driving over lawns in Warren County. The deputy was

responding to the call about the vehicle driving over lawns when he saw a silver Hyundai Santa

Fe, bearing the license plate number of the stolen vehicle, pass him on the road. The deputy

turned, activated his lights and siren, and pursued the vehicle. The vehicle made multiple U-turns

during the pursuit, allowing the deputy to clearly see the driver’s face. The vehicle eventually

entered and drove through a creek until it crashed. The deputy lost sight of the vehicle after it

drove into the creek bed, and when the deputy again located the vehicle, the driver had fled. At

trial, the deputy identified Defendant as the driver of the silver Hyundai Santa Fe that he

pursued.

Early on the morning of September 26, 2018, a patrol sergeant with the Warren County

Sheriff’s Department observed Defendant walking on the north I-70 service road near the

Warrenton Walmart. Defendant was wet, cold, tired, and muddy. Defendant told the sergeant that

he had been walking around Warrenton during the night, but did not know where he had walked.

Defendant told the sergeant that he took his girlfriend’s vehicle after an argument the day before,

and he knew she was going to call the police. Defendant told the sergeant that he parked the

vehicle at Walmart, stole some items from Walmart, and then left his girlfriend’s vehicle parked

there. Defendant told the sergeant that he left Walmart on foot, and denied driving the vehicle

during the pursuit by the Warren County Sheriff’s deputy. The sergeant arrested Defendant

without incident.

2 Warren County is located immediately east of Montgomery County.

3 The State in Warren County charged Defendant with first-degree tampering with a motor

vehicle “in that on or about September 25, 2018, in the [C]ounty of Warren, State of Missouri,

the defendant knowingly and without the consent of the owner unlawfully operated an

automobile, a silver Hyundai Santa Fe.” The State also charged Defendant in Warren County

with resisting arrest for his flight from the deputy, and attempted victim tampering for his later

attempts to persuade B.R. to recant her allegation that Defendant took her vehicle without

consent.

In addition, prior to trial in Warren County, Defendant was charged with first-degree

tampering with a motor vehicle “in that on or about September 25, 2018, in the county of

Montgomery, State of Missouri, the defendant knowingly and without the consent of the owner

unlawfully operated an automobile, a silver in color Hyundai Santa Fe.” Defendant pled guilty to

this charge in Montgomery County in 2019, and received a sentence of three years in the

Missouri Department of Corrections.

Defendant filed a motion to dismiss the Warren County tampering charge prior to trial on

double jeopardy grounds. In the alternative, Defendant sought a bill of particulars. The court held

a pre-trial hearing. The State acknowledged that the first-degree tampering charge occurred on

the same date, involved the same vehicle, and involved the same victim. Nevertheless, the State

argued that the Warren County tampering charge was a separate crime because it occurred nearly

four hours after Defendant originally took the vehicle from B.R. in Montgomery County, and it

occurred when Defendant left the vehicle parked at a Walmart in Warren County, returned to the

vehicle, and drove it away for the second time. The trial court overruled Defendant’s motion,

denying both dismissal and a bill of particulars.

4 The parties proceeded to trial. Defendant again moved to dismiss the tampering charge in

his motion for judgment of acquittal at the close of the State’s case. The State argued that it was

charging Defendant for “the events that took place in this county that are charged, not the events

that took place in Montgomery County so it can’t be double jeopardy.” Defendant did not testify.

Beyond Defendant’s statement to the arresting patrol sergeant that he left the vehicle at Walmart,

there was no independent corroborating evidence adduced by the State tending to prove that

Defendant interrupted his operation of the vehicle by parking it at Walmart, leaving the vehicle

for some time, and then returning to the vehicle and driving it away again. On this basis,

Defendant argued that the State failed to prove that the Warren County tampering charge was

different than the Montgomery County tampering charge—that the State failed to prove the

corpus delicti of a separate tampering offense committed in Warren County. Defendant

maintained that “the State presented no evidence of these alleged intervening circumstances at

trial—that [Defendant] got out of the vehicle and got back into it at Walmart, then operated it a

second time thereafter.” The trial court overruled Defendant’s motions for judgment of acquittal

at the close of the State’s case, at the close of all the evidence, and ultimately, for a new trial.

The jury convicted Defendant of first-degree tampering with a motor vehicle, resisting

arrest by fleeing an officer, and attempted victim tampering. The trial court sentenced Defendant

as a persistent felony offender to five years of imprisonment for first-degree tampering with a

motor vehicle and five years for resisting arrest, to be served concurrently. The court further

sentenced Defendant to five years of imprisonment for attempted victim tampering, to be served

consecutively to the other two sentences. Defendant appeals only his conviction and sentence for

first-degree tampering with a motor vehicle.

5 Discussion

On appeal, Defendant claims the trial court erred in entering a judgment of conviction

and sentencing him on the charge of first-degree tampering with a motor vehicle in Warren

County because this denied Defendant his rights to be free from double jeopardy and multiple

punishments for the same offense in that Defendant had previously entered a plea of guilty to,

and was sentenced for, first-degree tampering with a motor vehicle in Montgomery County for

the same conduct on the same date.

Standard of Review

Whether an individual’s right to be free from double jeopardy has been violated is a

question of law. State v. Aston, 434 S.W.3d 530, 533 (Mo. App. E.D. 2014). “We review

allegations of double jeopardy violations de novo without deference to the trial court.” State v.

Muldrew, 629 S.W.3d 99, 103 (Mo. App. E.D. 2021).

We review a challenge to the sufficiency of the evidence to determine whether the State

presented sufficient evidence from which a reasonable juror could have found beyond a

reasonable doubt that the defendant committed the charged offense. Mason, 616 S.W.3d at 348.

We view the evidence in the light most favorable to the jury’s verdict, and accept as true any

reasonable inferences from this evidence, disregarding evidence and inferences to the contrary.

Id. We do not reweigh the evidence on appeal, but instead defer to the jury’s factual findings, as

the jury is free to believe all, some, or none of the testimony. Id. Nevertheless, we cannot supply

missing evidence, nor can we give the State the benefit of unreasonable, speculative, or forced

inferences. Id.

6 Analysis

The Fifth Amendment to the United States Constitution establishes that no person shall

“be subject for the same offen[s]e to be twice put in jeopardy of life or limb.” U.S. CONST.

amend. V. The Fourteenth Amendment applies this protection against double jeopardy to the

states. Peiffer v. State, 88 S.W.3d 439, 442 (Mo. banc 2002). The Double Jeopardy Clause

contains two distinct protections for criminal defendants: (1) protection from successive

prosecutions for the same offense after either a conviction or an acquittal; and (2) protection

from multiple punishments for the same offense. State v. Liberty, 370 S.W.3d 537, 546 (Mo.

banc 2012); Stuart v. State, 565 S.W.3d 766, 773-74 (Mo. App. E.D. 2019). The Clause bars the

State from splitting a single offense into separate parts, and then prosecuting the offense

piecemeal. State v. Brandon, 523 S.W.3d 476, 480 (Mo. App. E.D. 2016). Double jeopardy

attaches to a guilty plea upon its unconditional acceptance. Peiffer, 88 S.W.3d at 444.

In addition to these general principles, section 556.041 limits certain convictions for

multiple offenses. Section 556.041 is Missouri’s general cumulative punishments statute. State v.

Onyejiaka, 671 S.W.3d 796, 799 (Mo. banc 2023). Section 556.041 provides that:

When the same conduct of a person may establish the commission of more than one offense he or she may be prosecuted for each such offense. Such person may not, however, be convicted of more than one offense if: (1) One offense is included in the other, as defined in section 556.046; or (2) Inconsistent findings of fact are required to establish the commission of the offenses; or (3) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or (4) The offense is defined as a continuing course of conduct and the person’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

7 (Emphasis added). One offense is included in the other when “[i]t is established by proof of the

same or less than all the facts required to establish the commission of the offense charged[.]”

Section 556.046.1(1) RSMo. (2016 & Supp. 2023) (emphases added).

However, the protections afforded by the Double Jeopardy Clause apply only to multiple

punishments or prosecutions for the same offense. State v. Harris, 153 S.W.3d 4, 7 (Mo. App.

W.D. 2005). In other words, when a defendant has, in law and fact, committed separate crimes,

multiple convictions are permissible and do not violate the Double Jeopardy Clause. State v.

Kamaka, 277 S.W.3d 807, 811 (Mo. App. W.D. 2009). When each charge is founded on

different conduct or when a separate mens rea is newly formed, the conduct gives rise to an

additional crime, id., and punishing a defendant for more than one offense arising from the same

set of facts does not violate the Double Jeopardy Clause, Stuart, 565 S.W.3d at 774.

Defendant first argues that the Blockburger, or “same-elements,” test prevents his

conviction for the same conduct on the same date in both Montgomery and Warren Counties.

The Double Jeopardy Clause bars a successive prosecution unless each offense contains a

unique element not contained in the other. Liberty, 370 S.W.3d at 546 (citing Blockburger v.

United States, 284 U.S. 299, 304 (1932)). Missouri has codified, in section 556.046, the test

established in Blockburger and known as the “same-elements test.” Peiffer, 88 S.W.3d at 443;

McIntyre v. Caspari, 35 F.3d 338, 343 (8th Cir. 1994). Missouri courts typically apply the

“same-elements” test to determine whether multiple charges comprise the same offense. Liberty,

370 S.W.3d at 546. We determine the elements of each offense at issue and compare them.

Kamaka, 277 S.W.3d at 813. If each offense contains an element that the other lacks, then the

Double Jeopardy Clause does not bar the later prosecution. Id.

8 Here, the State charged Defendant with first-degree tampering in both Montgomery and

Warren Counties. First-degree tampering as charged against Defendant in each county is defined

in section 569.080:

1. A person commits the crime of tampering in the first degree if he or she:

*** (2) Knowingly receives, possesses, sells, or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof.

In Montgomery County, where Defendant’s conduct began, the State charged Defendant

with first-degree tampering with a motor vehicle, in violation of section 569.080.1(2) “in that on

or about September 25, 2018, in the [C]ounty of Montgomery, State of Missouri, the defendant

knowingly and without the consent of the owner unlawfully operated an automobile, a silver in

color Hyundai Santa Fe.” Defendant pled guilty to this charge in Montgomery County and

received a sentence of three years in the Missouri Department of Corrections. In Warren County,

where Defendant’s conduct ended, the State charged Defendant with first-degree tampering with

a motor vehicle, in violation of section 569.080.1(2), “in that on or about September 25, 2018, in

the County of Warren, State of Missouri, the defendant knowingly and without the consent of the

owner unlawfully operated an automobile, a silver Hyundai Santa Fe.”

Critical to the determination of whether the two prosecutions are for the “same offense”

is whether the two offenses consist of the same elements. Although the State argued at trial that it

was prosecuting Defendant for “the events that took place in this county that are charged, not the

events that took place in Montgomery County,” venue is not an element of first-degree

tampering with a motor vehicle. State v. Stewart, 640 S.W.3d 174, 178 (Mo. App. E.D. 2022).

Nowhere in section 569.080 is the location of the offense listed as an element. Under this statute,

location is not a fact necessary to constitute the crime of first-degree tampering with a motor

9 vehicle. See State v. Taylor, 238 S.W.3d 145, 148 (Mo. banc 2007) (under statute at issue,

location was not a fact necessary to constitute crime charged).

There is no dispute that Defendant was charged and prosecuted twice—once in

Montgomery County and once in Warren County—with identical offenses of first-degree

tampering in violation of section 569.080.1(2) for unlawfully operating “an automobile,” the

same vehicle, namely B.R.’s silver Hyundai Santa Fe, without her consent on September 25,

2018. Defendant’s conviction for first-degree tampering in Warren County was established by

proof of all the same facts required to establish the charged offense of first-degree tampering in

Montgomery County to which Defendant previously pled guilty. Neither charged offense

contains a statutory element that the other lacks, nor necessitates proof of a fact which the other

does not. Liberty, 370 S.W.3d at 546.

Our Supreme Court held in Peiffer v. State that St. Louis County’s prosecution of Peiffer

for stealing a motor vehicle violated double jeopardy because he had already pled guilty to the

lesser-included offense of first-degree tampering in St. Louis City for the same conduct. 88

S.W.3d at 440-41. Likewise, in McIntyre v. Caspari, the Eighth Circuit concluded that

McIntyre’s two prosecutions violated the Blockburger test. 35 F.3d at 339. McIntyre was

convicted in St. Louis County of stealing for taking a car from a dealership in the County, and he

was also convicted of first-degree tampering in St. Louis City, where he was arrested while

driving the same car two days later. Id. at 338-39. In granting habeas relief, the Eighth Circuit

stated, “[t]he same elements test, the sole standard we must apply in double jeopardy cases like

the one before us today, requires that ‘each offense contain an element not contained in the

other.’” Id. at 344 (quoting United States v. Dixon, 509 U.S. 688, 696 (1993)) (emphasis in

original).

10 Successive prosecutions for stealing a vehicle in one county and first-degree tampering

for possessing or unlawfully operating the same vehicle two days later in a neighboring county

violate the Double Jeopardy Clause of the United States Constitution based on the Blockburger,

or the same-elements, test. Peiffer, 88 S.W.3d at 440-41; McIntyre, 35 F.3d at 338-39. In

addition, our Supreme Court has held that jeopardy attaches at the time of entry of an

unconditional plea. Peiffer, 88 S.W.3d at 445. Here, there were no conditions associated with

Defendant’s plea in Montgomery County; therefore, jeopardy attached to the Montgomery

County tampering charge when Defendant entered his guilty plea. Id.

The State does not address the same-elements test. Instead, the State seeks to distinguish

Peiffer because that case “turned on whether tampering was a lesser-included offense of stealing.

… The holding in Peiffer has nothing to do with Defendant’s case because the defendant there

was charged with tampering based on his possession of the automobile without the owner’s

consent.” The State’s argument is unpersuasive. Indeed, the facts in Peiffer are not identical to

the facts in the present case, and Peiffer involved tampering via possession of an automobile as a

lesser-included offense of stealing. The import of Peiffer to the present case is not the precise

offenses charged there. Rather, based on the Blockburger test, each of the two offenses did not

contain a statutory element not included in the other, and each offense did not necessitate proof

of a fact that the other did not. 88 S.W.3d at 444. Here, Defendant’s tampering charge in

Montgomery County and his tampering charge in Warren County consisted of the same statutory

elements for each offense, and necessitated proof of all the same facts. Defendant was charged

with the same distinct action and same method of tampering. Further, we observe that in Peiffer,

the lapse of two days between the defendant’s charge of stealing the vehicle in St. Louis County

and his charge of tampering with the same vehicle in St. Louis City did not preclude our

11 Supreme Court from determining Peiffer’s right to be free of double jeopardy was violated. Id. at

440-41.

We have applied the same-elements test as we are required to do by the U.S. Supreme

Court’s decision in Blockburger and codification of the Blockburger test in section 556.046.1(1)

RSMo. (2016 & Supp. 2023). We find that Defendant’s successive prosecutions in Montgomery

County and Warren County for first-degree tampering committed by unlawfully operating the

same vehicle in each county on the same day, under the circumstances presented here, violated

Defendant’s right to be free of double jeopardy, as did the successive prosecutions in different

venues in the Peiffer and McIntyre cases.

Defendant next argues that his conduct in Warren County comprised an uninterrupted,

continuing course of conduct that began in Montgomery County. We need not reach this

argument, however, because we find the allowable unit of prosecution specified in section

589.080.1(2) is unambiguously denoted as tampering with “an automobile”—one, single

automobile or other motor-propelled vehicle. The unit of prosecution intended in section

569.080.1(2) is dispositive.

As stated earlier, the protections afforded by the Double Jeopardy Clause apply only to

multiple punishments or prosecutions for the same offense. Harris, 153 S.W.3d at 7. Separate

offenses can arise from a single set of facts when the offenses are based on different acts or a

separate intent. Stuart, 565 S.W.3d at 774. When a defendant’s conduct is continuous, involves

more than one item (unlike here), or involves more than one victim (unlike here), the test for

double jeopardy focuses on the conduct the legislature intended to proscribe under the statute.

Liberty, 370 S.W.3d at 546; Muldrew, 629 S.W.3d at 104. If the legislature intended to allow

cumulative punishments, then there is no double jeopardy issue when a defendant is charged

12 more than once for the same conduct. State v. Johnson, 675 S.W.3d 620, 626 (Mo. App. S.D.

2023). Double jeopardy analysis regarding multiple punishments is limited, therefore, to

determining whether the legislature intended cumulative punishments. Liberty, 370 S.W.3d at

546-47.

“The legislature may express its intent to authorize multiple punishments in one of two

ways.” Onyejiaka, 671 S.W.3d at 799. To determine whether the legislature intended multiple

punishments, we look first to the “unit of prosecution” allowed by the statute under which the

State charged the defendant. Liberty, 370 S.W.3d at 547; Muldrew, 629 S.W.3d at 104. We

understand the legislature’s intent by ascertaining what “unit of prosecution” is provided under

an applicable criminal statute. Johnson, 675 S.W.3d at 626. We also infer legislative intent by

looking to the plain meaning of a statute’s words. Id. “The scope of conduct comprising one

violation of a criminal statute defines the unit of prosecution.” Muldrew, 629 S.W.3d at 104

(quoting Brandon, 523 S.W.3d at 480). In the absence of an offense-specific indication of

legislative intent, we next look to the legislature’s generally-expressed intent regarding multiple

punishments in the general cumulative punishment statute, section 556.041. Onyejiaka, 671

S.W.3d at 799.

Neither party cites any case addressing the allowable unit of prosecution for first-degree

tampering with a motor vehicle, nor has our own research revealed such a case. At oral

argument, both parties maintained that each operation without consent is the unit of prosecution

for first-degree tampering with a motor vehicle as the State charged in this case. We disagree.

We first consider the language of section 569.080.1(2) to determine the allowable unit of

prosecution the legislature intended. More specifically, we must consider whether the legislature

unambiguously expressed an intent in section 569.080.1(2) to impose separate punishments

13 either for each county, or venue, in which a defendant unlawfully operates the same automobile

without the owner’s consent, or for each time a defendant enters the same vehicle and drives it

without consent.

Despite Defendant’s argument that “[w]hether or not [s]ection 569.080.1(2) allows for

multiple prosecutorial units is, at best, ambiguous[,]” we find that section 569.080.1(2) is clear

and unambiguous. The statute plainly states “[a] person commits the crime of tampering in the

first degree if he or she … [k]nowingly receives, possesses, sells, or unlawfully operates an

automobile ….” Section 569.080.1(2) (emphasis added). “An” is an indefinite article used, in

place of the article “a,” before singular words that begin with a vowel sound. Johnson, 675

S.W.3d 626. “The plain and ordinary meaning of the word ‘a’ is the singular ‘one.’” Id. (quoting

State v. Nichols, 865 S.W.2d 435, 437 (Mo. App. E.D. 1993)). In section 569.080.1(2), “an”

means one, single automobile or other motor-propelled vehicle. See id. (“The legislature’s use of

‘an’ [before the word accident] means one offense of leaving the scene is tied to a single

accident.”); see also Harris, 153 S.W.3d at 7 (by using “a” in the phrase “a controlled substance”

in the statute, legislature denoted allowable unit of prosecution); Nichols, 865 S.W.2d at 427 (the

word “a” denoted allowable unit of prosecution for unlawful use of weapons so that each knife

defendant carried concealed upon his person was allowable unit of prosecution).

When a criminal statute prefaces the object of the offense with the word “a,” the statute

unambiguously authorizes singular units of prosecution. 3 Harris, 153 S.W.3d at 8. The plain,

unambiguous language of section 569.080.1(2), as charged here, intends to prohibit the conduct

3 In considering the allowable unit of prosecution, use of the word “a” has been held to be unambiguous, Harris, 153 S.W.3d at 8, in contrast to use of the word “any,” which our Courts have held to be ambiguous, see, e.g., Liberty, 370 S.W.3d at 548 (statutory proscription against possession of “any obscene material” is ambiguous in terms of allowable unit of prosecution).

14 of knowingly unlawfully operating one, single motor-propelled vehicle. 4 Nothing in the plain

language of the statute can reasonably be interpreted to divide such conduct into different acts or

to create a new and separate mens rea based solely on the time or place of operation, such as the

number of counties in which a person operates the same vehicle or the number of hours that

lapse. In this case, there is no dispute that Defendant unlawfully operated “an automobile”—only

one, single motor vehicle—owned by B.R. in both Montgomery and Warren Counties on

September 25, 2018. Defendant was not charged with undertaking one of the other substantive

acts a person could commit to constitute tampering; he was charged with unlawfully operating

the same vehicle in two counties.

We recognize that the legislature intended to allow multiple punishments for first-degree

tampering with multiple motor vehicles, or for separate and distinct acts committed involving a

single motor vehicle, such as receiving and then selling the same vehicle without the owner’s

consent. By using the word “an,” the relevant unit of prosecution is clearly and unambiguously

tied to each, individual motor-propelled vehicle that was the subject of tampering. The unit of

prosecution expressed in section 569.080.1(2) is not tied to the duration or location of the

tampering offense. The unit of prosecution is not tied to the number of times the defendant exits,

re-enters, and operates the same vehicle. Nor is it tied to an additional offense, such as resisting

arrest, that the defendant may commit while tampering with one, single vehicle. Given the plain

language of section 569.080.1(2), we find that the legislature did not intend to allow cumulative

punishments, as were imposed upon Defendant here, for knowingly unlawfully operating “an

4 Likewise, section 569.080.1(2) intends to prohibit the conduct of knowingly receiving one, single motor-propelled vehicle without the owner’s consent; knowingly possessing one, single motor-propelled vehicle without the owner’s consent; and knowingly selling one, single motor-propelled vehicle without the owner’s consent. The acts of receiving, possessing, selling, and unlawfully operating one, single motor-propelled vehicle all require proof of different facts, which would be key to establishing separate and distinct acts of tampering.

15 automobile”—one, single motor vehicle—without the owner’s consent, regardless of whether

such operation occurred in multiple locations or spanned some measure of time or involved the

commission of additional offenses.

The State’s theory of prosecution and on appeal, however, is that “Defendant’s actions in

this case demonstrate two distinct acts of unlawful operation [of] the vehicle without

permission.” In response to Defendant’s motion to dismiss, the State argued to the trial court that

Defendant “acknowledges that he drove the car to Walmart, he went in, he stole some items and

then he got back in the car and he drove it again. So these are two separate offenses, your Honor,

and not in violation of double jeopardy.” Now on appeal, the State for the first time suggests that

Defendant’s resisting arrest by fleeing the deputy in Warren County establishes that he formed a

new mens rea, and thus committed a tampering offense in Warren County, separate from his

tampering offense committed in Montgomery County. The State cites no authority for the

proposition that committing another offense, such as resisting arrest, while operating a motor

vehicle without the owner’s consent results in a separate tampering offense, and we find this

contention unpersuasive. Also in its brief on appeal, the State again argues that Defendant’s stop

at Walmart effected a separate tampering offense:

Any doubt about whether two convictions were warranted in this case was laid to rest after Defendant admitted to police following his arrest on September 26, 2018, that he drove the vehicle to a Walmart, got out, and went inside the Walmart. … When Defendant returned to the vehicle after being inside the Walmart and proceeded to unlawfully operate it a second time, a second conviction for first[-]degree tampering was permitted without violating Defendant’s rights against double jeopardy.

To avoid the Double Jeopardy Clause’s prohibition on multiple punishments,

Defendant’s conviction in Warren County must be supported by proof that Defendant committed

a separate act or formed a new intent by unlawfully operating the vehicle after interrupting his

conduct by stopping at Walmart for some unspecified period. Even were we to assume for the

16 sake of argument that such an alleged stop at a store could interrupt Defendant’s operation of the

vehicle so that it might be established he committed a separate act or formed a new intent, the

State cannot prevail in this case because it has failed to prove the corpus delicti of the alleged

separate tampering offense.

Proof of the alleged interruption of Defendant’s operation of the vehicle is important to

the double jeopardy analysis. Interruption of operation is not an element of tampering that must

be found by the jury. Nevertheless, substantial evidence is needed to prove that Defendant

interrupted his operation of the vehicle, thereby committing a separate act or forming a new

intent. But aside from Defendant’s self-serving statement to the patrol sergeant that he left the

vehicle at Walmart, the record contains no independent corroborating evidence whatsoever

demonstrating that Defendant went to Walmart, that Defendant interrupted his operation of

B.R.’s vehicle, that Defendant engaged in different conduct in Warren County than in

Montgomery County, that he committed a separate act in Warren County, or that he formed a

new and separate mens rea in Warren County. Without independent corroborating evidence, the

State could not prove the corpus delicti of a separate tampering offense.

Defendant points to his repeated arguments in the trial court that “the State presented no

evidence of … alleged intervening circumstances at trial.” The record reveals that Defendant

argued in support of his motion for judgment of acquittal at the close of all the evidence that the

State “put no evidence on of anything, any change, any getting out of the car, any re-taking the

car to make it a second case out of this county.” In other words, Defendant argues that the State

failed to establish the corpus delicti of a separate offense in Warren County. We agree.

“Missouri adopted the corpus delicti rule from English common law to avoid conviction

of a criminal defendant without corroborating evidence independent of the defendant’s out-of-

17 court confession or ‘extrajudicial admissions.’” State v. Burrow, 680 S.W.3d 162, 167 (Mo. App.

E.D. 2023). A defendant’s confession not made in open court, uncorroborated by circumstances,

and without proof from another source that a crime was committed will not justify a conviction.

Id. The State is required to prove that a criminal act was committed. State v. Troyer, 663 S.W.3d

853, 858 (Mo. App. S.D. 2023). With no evidence presented, other than Defendant’s confession,

demonstrating proof of any criminal act, the State failed to prove the corpus delicti of the

charged crime. Id. Here, no independent corroborating evidence was presented justifying

Defendant’s conviction of a separate tampering offense in Warren County.

We cannot supply missing evidence, nor can we give the State the benefit of

unreasonable, speculative, or forced inferences. Mason, 616 S.W.3d at 348. And without any

independent corroborating evidence that Defendant committed a separate act of tampering or

formed a new mens rea in Warren County, the evidence in this case is insufficient to support the

State’s charge of a separate tampering offense committed in Warren County.

Conclusion

We conclude that the State’s prosecutions of Defendant in Montgomery County and

again in Warren County constituted successive prosecutions for the same offense of first-degree

tampering, resulting in multiple punishments for the same offense based on knowingly

unlawfully operating the same motor vehicle without consent. As such, the State’s prosecution in

Warren County violated the prohibition against double jeopardy contained in the Fifth

Amendment to the U.S. Constitution. We reverse Defendant’s conviction for first-degree

tampering in Warren County, and vacate his sentence for that offense. Defendant has not

18 challenged his conviction and sentences for resisting arrest and attempted victim tampering, and

thus, we affirm the trial court’s judgment in all other respects. 5

________________________________ Angela T. Quigless, J.

Lisa P. Page, P.J., concurs

Gary M. Gaertner, Jr., J., dissents in a separate opinion

5 The dissent cites numerous cases—especially assault cases—involving distinct acts, different means of commission, and multiple victims to support the argument that a person could hypothetically commit multiple tampering offenses involving the same vehicle. We find these cases inapposite. The dissent’s analysis would have a person charged with a separate tampering offense for unlawfully operating the same vehicle without consent every time the person stopped for gas or went into a convenience store or fast-food restaurant. Such a plethora of tampering charges for unlawful operation of the same vehicle represents the sort of harm the Double Jeopardy Clause and section 556.041 seek to avoid.

19 In the Missouri Court of Appeals Eastern District DIVISION THREE

STATE OF MISSOURI, ) No. ED111834 ) Respondent, ) Appeal from the Circuit Court ) of Warren County v. ) Cause No. 18BB-CR00732-01 ) BRIAN KEITH HEATHCOCK, ) Honorable Jason H. Lamb ) Appellant. ) Filed: July 16, 2024

DISSENT

I respectfully dissent. While I believe the ultimate question of whether Defendant’s

conviction should be reversed here is a closer one, and I can understand the majority’s

leaning from a policy standpoint of not penalizing Defendant twice for first-degree

tampering under these facts, I have concerns about how the legal analysis in the majority

opinion will impact future cases. Specifically, (1) I believe the majority too broadly applies

the same-elements test here, where Defendant was charged with two counts of the same

offense, and such application may lead to improper reversals in the future; (2) I believe the

majority’s statutory interpretation regarding the unit of prosecution for first-degree

tampering in Section 269.080.1(2) potentially creates confusion for practitioners and does

not comport with the legislature’s clear intent; and (3) I believe the majority’s application of the corpus delecti rule to a trial court’s double-jeopardy determination is the first holding

of its kind and stretches the rule beyond its purpose. Applying the proper legal and

evidentiary standards in this particular case, I would also uphold the trial court’s

determination under the circumstances here and affirm Defendant’s conviction.

1. Double Jeopardy Analysis

The majority first lays out the Blockburger, or “same-elements,” test, noting that

successive prosecutions are barred by the Double Jeopardy Clause unless each requires

proof of a unique element not contained in the other. Maj. Op. at 8 (citing State v. Liberty,

370 S.W.3d 537, 546 (Mo. banc 2012) (citing Blockburger v. U.S., 284 U.S. 299, 304

(1932))). However, this test is most useful, and by its terms is limited to, where a defendant

has been charged with two different offenses for the same conduct. See Blockburger, 284

U.S. at 304 (“[t]he applicable rule is that where the same act or transaction constitutes a

violation of two distinct statutory provisions, . . .” (emphasis added)); Liberty, 370 S.W.3d

at 560 n.7 (Russell, J., concurring) (noting Blockburger rule is distinguished in cases where

focus is not on defendant “being charged under two separate statutes but rather being

charged with multiple counts under the same statute”); Horsey v. State, 747 S.W.2d 748,

751 (Mo. App. S.D. 1988) (en banc) (Blockburger test is “in some instances difficult of

application [because i]t assumes identification of a separate offense that requires proof of

a fact not required by another offense” (emphasis added)).

Here, Defendant was charged with two counts of the same offense. 1 The elements

of the two charges here were identical, thus our analysis must instead be guided by cases

1 While the charges originated in different counties, I agree with the majority that venue is not a determining factor in the question of whether a defendant has committed one or more offenses of first-degree tampering. See Maj. Op. at 16-17.

2 involving defendants convicted of multiple counts under the same statute.2 The Supreme

Court of Missouri in State v. Liberty considered a defendant’s convictions of eight counts

of possession of child pornography based on the defendant’s possession of eight separate

images. 370 S.W.3d at 540. The court laid out the Blockburger test, but then noted its

limitations in circumstances such as those in the present case, which often underlie charges

for multiple counts under the same statute:

But when a defendant’s conduct is continuous, involves more than one item or involves more than one victim, the test more appropriately is focused on the conduct the legislature intended to proscribe under the statute.

Liberty, 370 S.W.3d at 546.

Even the Blockburger Court considered this scenario, as the defendant there argued

in one point that his multiple convictions under the same statute for illegal drug sales were

part of a continuous course of conduct and therefore constituted only one offense.

Blockburger v. U.S., 284 U.S. 299, 301-02 (1932). The Court distinguished offenses that

are continuing by their nature from offenses completed in an isolated act. Id. at 302

(contrasting In re Snow, 120 U.S. 274 (1887) (finding offense of cohabitating with more

than one woman to be a continuing offense) with Ebeling v. Morgan, 237 U.S. 625 (1915)

(finding each successive tearing of a mailbag to constitute one commission of the offense

of willfully tearing a mailbag with intent to rob).

The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. . . . If the latter, there can be but one penalty.

2 Similarly, the majority relies on the first subsection of Missouri’s general cumulative statute, which codifies the Blockburger test. Section 556.041(1). As I explain, infra, I believe subsection (4), regarding continuing offenses, is more applicable under the circumstances here, and codifies the rule in cases considering double jeopardy where a defendant is charged with multiple counts under the same statute.

3 Id. (quoting Wharton’s Criminal Law (11th ed.) § 34 n.3).

However, overlooking Blockburger and its progeny’s distinction between two

charges of the same statutory offense regarding continuous conduct and two charges

stemming from different statutes, the majority proceeds to liken the present case to those

of Peiffer v. State, 88 S.W.3d 439 (Mo. banc 2002), in which the defendant was convicted

of both stealing and first-degree tampering by possession in two different counties related

to the same instance of taking the same vehicle, and McIntyre v. Caspari, 35 F.3d 338 (8th

Cir. 1994), in which the defendant likewise was convicted of stealing a car in St. Louis

County and then of first-degree tampering by possessing the same car in St. Louis City two

days later. Though the majority states that “[t]he import of Peiffer to the present case is

not the precise offenses charged there[,]” maj. op. at 11, I believe that the offenses charged

there are exactly why Peiffer is not applicable here. Neither Peiffer nor McIntyre

considered a situation where the defendant was charged with two counts of the same

offense regarding conduct that is continuing in nature.3 Both the Blockburger Court and

our own Supreme Court have made this distinction, and so should we here.

Thus, I find the majority’s application of the Blockburger test and conclusion

immediately thereafter that these prosecutions violated Defendant’s right to be free from

double jeopardy, maj. op. at 12, is potentially subject to future misuse. While the majority,

I think rightly, does not end the analysis there, the conclusory statements following

3 Moreover, neither case considered a charge of first-degree tampering by operation, which further distinguishes them from the case here and which this Court has determined is not a lesser-included offense of stealing. State v. DeRoy, 623 S.W.3d 778, 787 (Mo. App. E.D. 2021) (distinguishing Peiffer). Because possession is a continuing offense, it can span the passage of two days and overlap with the initial taking under the facts of Peiffer and McIntyre, but because operation does not necessarily continue for that whole time, or even necessarily occur at the taking, first-degree tampering by operation is not a lesser-included offense of stealing. See id. The precise offenses charged in those cases were crucial to the outcome, and the case here is simply not analogous.

4 application of the same-elements test and comparison of Peiffer and McIntyre I believe

muddy the waters and will potentially result in over-application of double jeopardy

concerns, beyond what the legislature intended.

2. Unit of Prosecution

The majority continues by noting Defendant argues his conduct was uninterrupted,

but stating they need not reach such argument because the unit of prosecution for first-

degree tampering centers on the vehicle at issue. Maj. Op. at 12. While I agree that

consideration of the legislature’s intended unit of prosecution is required by the

circumstances and precedents such as Blockburger itself and Liberty, I find the majority’s

analysis incomplete. Whether Defendant’s conduct was interrupted is the decisive factor

here.

Acknowledging that “multiple punishments are permissible if the defendant has in

law and fact committed separate crimes,” the Supreme Court of Missouri notes that courts

first look to the statutory language defining the offense to determine the legislature’s

intended “unit of prosecution.” State v. French, 79 S.W.3d 896, 898-99 (Mo. banc 2002)

(citing Blockburger, 284 U.S. at 304); see also Liberty, 370 S.W.3d at 546; State v.

Roggenbuck, 387 S.W.3d 376, 381 (Mo. banc 2012); State v. Sanchez, 186 S.W.3d 260,

267 (Mo. banc 2006). The unit of prosecution, or “unit of the crime,” 4 is essentially the

scope of the offense, or what constitutes one distinct commission of the crime. The

legislature may choose a definition of each offense that fits the legislature’s desired intent

to either impose multiple punishments or a single punishment for particular conduct,

depending on the circumstances.

4 U.S. Universal C.I.T. Credit Corp, 344 U.S. 218, 227 (1952) (Douglas, J., dissenting).

5 Here, the relevant portion of Section 569.080.1(2) states that a person commits first-

degree tampering if he or she “[k]nowingly receives, possesses, sells, or unlawfully

operates an automobile . . . .” The majority duly considers the unit of prosecution for this

offense; focuses on the word “an,” which denotes a singular object; and concludes therefore

the unit of prosecution is centered on the vehicle under Section 569.080.1(2). Maj. Op. at

14-15 (citing State v. Harris, 153 S.W.3d 4 (Mo. App. W.D. 2005) (finding defendant could

be convicted of separate counts of possession of a controlled substance for each substance

possessed); Johnson, 675 S.W.3d at 527-28 (leaving the scene of an accident permits

separate charges for each accident, defined as each impact to a person or vehicle); State v.

Nichols, 865 S.W.2d 435 (Mo. App. E.D. 1993) (unlawful use of a weapon permits separate

charges for each weapon)).

I do not disagree that the language “an automobile” denotes a unit of prosecution

for first-degree tampering, such that if a person were to take a commercial car transporter

loaded with several vehicles, that person could be charged under Section 569.080.1(2) with

multiple counts of first-degree tampering by possessing the truck as well as each of the

vehicles. I believe such a conclusion is supported by the cases noted above and cited by

the majority. However, I would find the legislature also intended that the particular action

by which a person commits first-degree tampering is an additional unit of prosecution,

given the language here. 5

5 I see no reason why there need be only one unit of prosecution intended by the legislature. Assault is an example of another crime having two units of prosecution: both the act or method of assault and the person who is the object of the assault. Compare State v. Garrett, 598 S.W.3d 904, 907 (Mo. App. E.D. 2020) (unit of prosecution is object of assault: “evidence of a single gunshot in the direction of multiple human targets can support multiple convictions for assault . . . “) and State v. Bowles, 754 S.W.2d 902, 911 (Mo. App. E.D. 1988) (“[t]he overwhelming weight of authority holds that a single act of assault by the defendant which affects two or more persons constitutes multiple offenses”) with Tyler, 196 S.W.3d at 641 (unit of prosecution is method of assault: each assault against same victim “involved a different method of assault, and each was separated in time intervals sufficient to allow [defendant] to reflect upon his conduct . . .”) and Schofield v.

6 Section 569.080.1(2) lists four acts that constitute first-degree tampering: receiving,

possessing, selling, or unlawfully operating. Missouri courts have found that where the

legislature provides more than one distinct act that could constitute an offense, a defendant

can conceivably commit two instances of the offense regarding the same object. See State

v. Pitiya, 623 S.W.3d 217 (Mo. App. W.D. 2021). For instance, in Pitiya, the offense at

issue was resisting arrest, which includes two distinct acts that can constitute resistance:

(1) threatening the use of violence or physical force, and (2) fleeing from the officer. Id.

at 221. The court noted precedent holding “the appropriate unit of prosecution for the

crime of resisting arrest is the substantive act of undertaking a resistance to arrest,” and

thus the defendant’s charges for both fleeing from an officer by driving at high rates of

speed and for attempting to hit the same officer’s patrol vehicle did not violate the Double

Jeopardy Clause. Id.

Similarly, here, there are four substantive acts a person could undertake to

constitute tampering with a vehicle, and I would conclude the legislature intended to

penalize a defendant for committing each act, even if it involves the same vehicle. For

example, a person could unlawfully operate a vehicle and then sell it, and I would find the

legislature intended that person could be charged with two separate counts of first-degree

tampering under the plain language of Section 569.080.1(2). The sale requires both actions

and mens rea that are independent and distinct from operation of the vehicle. See Pitiya,

623 S.W.3d at 221 n.4 (quoting State v. Barber, 37 S.W.3d 400, 404 (Mo. App. E.D. 2001))

(“Missouri courts have repeatedly found separate offenses ‘where the conduct is dissimilar

State, 750 S.W.2d 463, 466 (Mo. App. W.D. 1988) (upholding three convictions of first-degree assault because defendant attempted to kill or cause serious physical injury by means of a dangerous instrument in three different ways against the same victim).

7 or the actions are separated in time . . . [and] a separate mens rea is formed for each act . .

.’”).

By the same token, I would find that the plain language of Section 569.080.1(2)

permits charging a person with two counts of tampering for two separate instances of

unlawful operation of the same vehicle, or two separate instances of unlawful possession,

receipt, or sale of the same vehicle. See Barber, 37 S.W.3d at 404 (rejecting a double

jeopardy challenge where defendant raised the same knife to the same victim twice in the

course of one altercation because actions were separate enough in time for defendant to

form separate mens rea for each act); see also Roggenbuck, 387 S.W.3d at 381 (multiple

counts of possession of child pornography permitted where evidence showed defendant

obtained possession of images at different times and places); Sanchez, 186 S.W.3d at 267

(conviction of two counts of kidnapping of same victim permitted based on different ways

person was victimized).

The majority acknowledges that the legislature intended to prohibit the different

acts included in the tampering statute even if they involve a single motor vehicle, such as

receiving and then selling the same vehicle, but then concludes nevertheless that the

legislature did not intend to punish separate acts of operating the same vehicle. Maj. Op.

at 15-16. I find these conclusions inconsistent and potentially confusing for prosecutors

and courts to apply in the future. If the plain language permits separate charges for separate

acts of tampering, as the majority grants, I see nothing in the statutory language limiting

those separate charges only to different acts, but not separate instances of the same act.

Thus, I would not foreclose the possibility that Defendant committed two distinct acts of

first-degree tampering by unlawfully operating the vehicle at issue.

8 Moreover, the majority reasons that “the legislature did not intend to allow

cumulative punishments, as were imposed upon Defendant here, for knowingly unlawfully

operating ‘an automobile’—one, single motor vehicle—without the owner’s consent,

regardless of whether such operation occurred in multiple locations or spanned some

measure of time or involved the commission of additional offenses.” Maj. Op. at 15-16.

While I largely agree, I believe these statements miss the point and may further confuse

application of the first-degree tampering statute. Indeed, the issue of separate offenses is

not tied to location, time, or other offenses: a person could conceivably operate a vehicle

two separate times all in the same county, within a relatively short period of time, and

without committing any other offenses; conversely, a person could operate a vehicle only

once, continuously for hours, spanning many counties, and committing multiple other

offenses such as resisting arrest, driving while intoxicated, or leaving the scene of an

accident. These factors are unrelated, as the majority notes. But rather than shifting focus

to the fact that these relate to one vehicle, there is instead one simple question we must ask

about the operation: whether the instances of operation are distinct from one another, such

that the defendant stopped operating the vehicle, and then had an opportunity to reconsider

and form a new intent to undertake a new operation of the vehicle. 6 See State v. Tyler, 196

S.W.3d 638 (Mo. App. W.D. 2006) (if defendant has an opportunity to reconsider his

6 While the majority is correct that my interpretation of the plain language of Section 569.080.1(2) would permit multiple offenses if a person makes multiple stops, I do not believe in practice this would often happen, as the State would have to provide evidence of each separate instance of operation, each stop and re-start, and even a stop at a fast-food restaurant would not necessarily interrupt operation if the person utilized a drive-through window or curbside service. However, I do believe the language permits it, and I do not believe it would constitute “harm” or offend double jeopardy because the legislature is clear regarding its intent. See Blockburger, 284 U.S. at 305 (noting that where plain language prescribes multiple punishments, “if that be too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction”).

9 actions, or charges are based on different acts or separate mens rea is newly formed,

conduct gives rise to an additional crime).

This analysis is consistent with Section 556.041, Missouri’s general cumulative

punishment statute. Subsection (4) allows for the possibility that a person can commit

multiple offenses through the same conduct, but states a person cannot be convicted of two

offenses where “[t]he offense is defined as a continuing course of conduct and the person’s

course of conduct was uninterrupted, unless the law provides that specific periods of such

conduct constitute separate offenses.” Section 556.041(4). Here, Defendant argues that

first-degree tampering with a vehicle is a continuing offense that takes place over a period

of time, and his operation of the vehicle was uninterrupted and therefore part of one

continuous act of first-degree tampering. First-degree tampering by operation of the

vehicle as charged here is a continuing offense, 7 thus the decisive question is whether

Defendant’s conduct was interrupted, constituting two separate instances of unlawful

operation of the vehicle.

3. Evidentiary Standard for Double-Jeopardy Determination

The State argues that Defendant’s initial operation of the vehicle in Montgomery

County was interrupted by his admitted stop at Walmart in Warren County, after which he

again undertook operation of the vehicle, was pursued by a deputy sheriff in Warren

County, abandoned the vehicle in a creek bed, and was later apprehended in Warren

7 While I do not find a Missouri case determining whether operating a vehicle is a continuing offense, the ordinary understanding of the word “operate” seems to include both an isolated moment, such as turning on the vehicle’s ignition, as well as a continuing course of conduct, such as driving the vehicle over a period of time. Cf. State v. Clayborn-Muldrow, 640 S.W.3d 491, 496 (Mo. App. E.D. 2022) (noting possession, bigamy, operating a house of prostitution, and false imprisonment are all continuing offenses; others, such as striking a person, are immediately accomplished; and others, such as embezzlement, depend on the circumstances). There is no question under the facts here that Defendant was charged with operation of a vehicle that was continuous in nature, as it is undisputed he either drove it over a period of time, or over two separate periods of time.

10 County. Thus, the State argues, through these two separate instances of operating the

vehicle, there was evidence to support two separate acts of first-degree tampering, and thus

no double-jeopardy violation. Under the circumstances here, I would agree.

The majority notes that the standard of proof required to support the trial court’s

double-jeopardy determination here is substantial evidence, which the Supreme Court of

Missouri stated in State v. Roggenbuck, 387 S.W.3d 376. The defendant there had been

charged with five counts of possession of child pornography. Id. at 380. Citing Liberty,

the court noted that if the State could show evidence demonstrating separate offenses, such

as the defendant coming into possession of the images at different times or from different

sources, there would be no double-jeopardy violation. Id. at 381 (citing Liberty, 370

S.W.3d at 555). The defendant in Roggenbuck argued that the jury had to find facts

regarding when he came to possess each photograph beyond a reasonable doubt, but the

court disagreed:

To convict an individual of a crime in a jury trial, the state must prove each element of the offense beyond a reasonable doubt. State v. Taylor, 238 S.W.3d 145, 148 (Mo. banc 2007). The jury is not required to find facts that are not elements of the offense, such as the location of the crime for venue purposes. Id. The dates on which Roggenbuck obtained possession of the images are not an element of the offense. See Section 573.037. Consequently, the fact of when possession was obtained, while important to the double jeopardy analysis, is not an element of the offense that must be found by the jury.

Id. at 382. The court went on to note that there was substantial evidence demonstrating

that the defendant acquired possession of the images at different times, and the court found

no violation of the Double Jeopardy Clause. Id.

Similarly, here, the jury did not need to find an interruption of Defendant’s

operation of the vehicle beyond a reasonable doubt, as it was not an element of the crime.

11 The court needed only to find substantial evidence of such an interruption in order to make

its determination as to whether the two charges violated the Double Jeopardy Clause.

Here, the State presented the testimony of a Warren County detective (Detective).

Detective was working on patrol the day of Defendant’s arrest, following up on the search

for a suspect who had abandoned the vehicle at issue the previous evening in a creek bed

in Warren County and had fled from a deputy sheriff pursuing him. The State introduced

Detective’s body camera footage, which included Detective’s initial conversation with

Defendant. The State played the footage for the jury during Detective’s testimony. In the

recording, Defendant tells Detective that he and his girlfriend “got into it,” he drove the

vehicle away, and 20 to 30 minutes later he stopped at Walmart. Defendant said he left the

keys to the vehicle under the front seat, went inside and stole some items, and had been

walking around since then. Detective testified he believed Defendant told him this story

to avoid responsibility for fleeing from the sheriff’s deputy the night before.

The majority concludes that Defendant’s statement to Detective that he stopped at

Walmart and went inside was not substantial evidence supporting the trial court’s double-

jeopardy determination because it was not corroborated. I disagree.

The majority relies on the corpus delecti rule, which is Latin for “body of the

crime.” State v. Madorie, 156 S.W.3d 351, 353 (Mo. banc 2005). “The term is used in the

context of criminal law to describe the prosecutor’s burden of proving that a crime was

committed by someone, independent from a defendant’s extrajudicial statements.” Id. at

353-54. The rule originated in 17th-century England after several defendants were hanged

for murder based on extrajudicial confessions, only to have the alleged victims later found

still alive. Id. at 354. The rule is now accepted in the United States as a “basic requirement

12 in any criminal case.” Id. “All elements of the offense must be established by independent

evidence or corroborated admissions[.]” Smith v. U.S., 348 U.S. 147, 156 (1954). In

Missouri, corpus delecti consists of two elements: “(1) Proof, direct or circumstantial, that

the specific loss or injury charged occurred; (2) someone’s criminality as the cause of the

loss or injury.” State v. Hardy, 276 S.W.2d 90, 93 (Mo. banc 1955).

Here, the corpus delecti of two instances of tampering was present. The first took

place when Defendant initially drove the car away, and Defendant’s girlfriend’s report of

her vehicle as stolen to police established proof that the loss occurred due to someone’s

criminality. Second, approximately four hours later, a Warren County Sheriff’s deputy

observed the stolen vehicle driving away from him as he attempted to conduct a stop, which

constituted proof that the vehicle was being unlawfully operated due to someone’s

criminality. 8 None of this is in dispute.

However, the majority extends the corpus delecti rule not only to the elements of

the crime itself, but to the trial court’s legal determination of whether multiple charges

constitute double jeopardy. While I can understand the hesitance to rely on this statement

as substantial evidence, given the fact that Detective did not believe it, I am concerned

about applying a legal rule in this context that has, prior to now, been in place to protect

persons who, for whatever reason, confess to crimes that there is no other reason to believe

even actually took place. Here, unlawful operation undoubtedly took place at both times,

and Defendant confessed to neither. The question simply is, were they connected or not?

8 In noting that evidence of resisting arrest here provides corpus delecti for unlawful operation at a time later than the initial moment of unlawful operation, I do not propose that the resisting charge is what enables a second charge of first-degree tampering. The only relevant question is whether these two times of observed unlawful operation were separated by any interruption, not whether they accompanied other crimes or took place in different counties.

13 Did Defendant continuously operate the vehicle (one crime), or did he stop, have time to

decide whether to again unlawfully operate the vehicle, and then do so (two crimes)?

Because this was a legal determination for the court, and not an element of the crime, I

believe application of the corpus delecti rule is inappropriate.9

For this question alone, we need find only substantial evidence to support the trial

court’s conclusion that Defendant’s operation of the vehicle in Montgomery County was

separate and unconnected to his operation of the vehicle in Warren County—any evidence

in the record the trial court could have relied on to make its determination. Defendant’s

statement that he stopped at Walmart and went inside is evidence that the trial court could

have relied on to determine that his operation of the vehicle was not continuous, but was

interrupted, and thus the two different times at which corpus delecti of unlawful operation

unquestionably exists were not part of one continuous operation but were in fact two

distinct operations.

In this light, Defendant’s argument that his statement was not credible should not

affect our analysis.10 It is not our province to find the underlying facts—we must only

determine whether the trial court’s decision that Defendant’s conduct was interrupted was

supported by substantial evidence. I would find Defendant’s admission that he stopped the

vehicle and got out 20 to 30 minutes after taking it coupled with the jury’s finding that

Defendant fled from the sheriff’s deputy in the vehicle hours later is substantial evidence

9 In fact, the corpus delecti rule was honored in Defendant’s case, given the fact that the State did not charge him with the only crime to which he confessed—stealing at Walmart—as there was no corroborating evidence that any theft took place that day. 10 It is just as possible that Defendant did stop the car and get out but lied about stealing, as it is possible that he lied about stopping altogether. In the body camera footage, Defendant tells Detective he thought Detective was stopping him about a stealing that happened at Walmart. In response to Detective’s questions about fleeing from the Warren County Sheriff’s deputy, Defendant tells Detective that was not him because he was at Walmart.

14 of an interruption in Defendant’s operation of the vehicle that the trial court could rely

upon to support an additional charge. Thus, I would affirm.

For the foregoing reasons, I respectfully dissent.

Gary M. Gaertner, Jr., J.