text:
    STATE of Missouri, Respondent, v. Kristopher Monte PRINCE, Appellant.
    No. WD 70337.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Melinda K. Pendergraph, Columbia, MO, for appellant.
    Shaun J. Mackelprang and James B. Fransworth, Jefferson City, MO, for respondent.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, KAREN KING MITCHELL, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Kristopher Prince appeals the trial court’s judgment convicting him of second degree murder, unlawful use of a weapon, and armed criminal action. Prince alleges that the trial court: (1) erred in denying his motions to dismiss, accepting the verdicts, and sentencing him on second degree murder and unlawful use of a weapon in violation of his right of protection against double jeopardy; (2) erred in denying his motions to dismiss, accepting the verdicts, and sentencing him on unlawful use of a weapon and armed criminal action in violation of his right of protection against double jeopardy; (3) abused its discretion in overruling Prince’s objection to the admission of jail tapes because they were inaudible and improperly bolstered a codefendant’s testimony; (4) abused its discretion in overruling Prince’s objection to the State’s improper closing argument; (5) plainly erred in admitting testimony regarding Prince’s right to remain silent; and (6) abused its discretion in denying Prince’s motion for continuance. We affirm.

Factual and Procedural History

On April 12, 2007, Prince and his cousin, Lorenzo Ladiner, bought an assault rifle for the purpose of robbing a local drug dealer, Larry McBride. They stored the rifle at Ladiner’s home. Later that same day, Ladiner was pulled over and arrested on an outstanding warrant. The next day, when Prince went to post bail for Ladiner, Prince was arrested on an outstanding warrant. From April 13 to 18, 2007, Prince remained in custody at the Boone County jail. During his confinement, Prince made several phone calls to Ladi-ner in which they discussed their plans to assault and rob McBride.

While Prince was in custody, Ladiner fired shots at McBride’s vehicle. When Prince was released, he went to Ladiner’s house. McBride pulled up to the house with Tedarrian Robinson and Carlos Dudley. McBride accused Ladiner of shooting at his house which led to a heated verbal exchange. Prince attempted to open McBride’s door, and McBride drove off.

Prince and Ladiner ran inside Ladiner’s house. Prince grabbed the assault rifle and Ladiner grabbed the car keys to chase after McBride. When they caught up with McBride, Prince leaned out the passenger window and fired at least five shots at McBride’s vehicle. One bullet pierced the trunk of McBride’s vehicle, traveled through the rear seat to the front passenger headrest, and struck Robinson in the neck. Prince and Ladiner returned to La-diner’s house and hid the rifle in the attic. McBride drove toward the hospital. Dudley called the police and reported that Prince was the shooter. The police pulled McBride over and took Robinson to the hospital where he was pronounced dead.

Police responded to Ladiner’s house and arrested both Ladiner and Prince. Prince was charged with murder in the second degree, section 565.021 (felony murder), unlawful use of a weapon by shooting a firearm from a motor vehicle, section 571.030.1(9), and armed criminal action, section 571.015. Prior to trial, Prince filed a motion for continuance and several motions to dismiss based on double jeopardy and statutory grounds, all of which were denied by the trial court. A jury found Prince guilty on all three counts. Prince was sentenced to consecutive sentences of thirty years for felony murder, fifteen years for unlawful use of weapon, and five years for armed criminal action. Prince appeals.

Point I

Prince argues that the trial court erred in sentencing him for both felony murder and unlawful use of a weapon because the cumulative sentences imposed for these convictions violated his right to be free from double jeopardy and violated section 556.041(3), as he was effectively convicted of a general crime and a specific crime based on the same conduct. The Double Jeopardy Clause of the Fifth Amendment prevents a defendant from being subjected to multiple punishments for the same offense. Peiffer v. State, 88 S.W.3d 439, 442 (Mo. banc 2002). “Double jeopardy analysis regarding multiple punishments is ... limited to determining whether cumulative punishments were intended by the legislature.” State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992) (citing Missouri v. Hunter, 459 U.S. 359, 366-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). When the legislature specifically authorizes cumulative punishments under two statutes that proscribe the same conduct, cumulative punishments may be imposed against the defendant without violating the Double Jeopardy Clause. Id. Thus, in resolving the question of double jeopardy where cumulative punishment is claimed, legislative intent is paramount.

Section 556.041(3) prohibits the conviction of more than one offense if “[t]he 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.” (Emphasis added.) Prince was convicted of felony murder, the commission of any felony that results in death. The felony that served as the predicate offense for the felony murder conviction was the charge of unlawful use of a weapon by shooting a firearm from a motor vehicle, a violation of section 517.030.1(9). Prince contends that he was also convicted of the enhanced charge of unlawful use of a weapon by shooting a firearm from a motor vehicle resulting in death. This enhanced charge is described in section 571.030.7, which provides that a violation of section 571.030.1(9) is a class B felony “except that if the violation of subdivision (9) of subsection 1 ... results in injury or death to another person, it is a class A felony.” Prince thus takes the position that he was convicted and sentenced twice for the same crime — the commission of a felony resulting in death — with one offense (felony murder) designating his conduct generally and one offense (enhanced violation of section 571.030.1(9)) designating his conduct specifically. As a result, Prince contends his cumulative sentences for both convictions violate section 556.041(3). This point is without merit as Prince’s claim is predicated on a false premise.

The State initially charged Prince with a class A felony — the enhanced violation of section 571.030.1(9) pursuant to section 571.030.7. However, prior to trial, the State filed a second amended information in which the enhanced unlawful use of a weapon charge was reduced to the unen-hanced class B felony of unlawful use of a weapon pursuant to section 571.030.1(9). The jury was instructed on the class B felony of unlawful use of a weapon which, though requiring proof of Prince’s discharge of a firearm from a motor vehicle, did not require proof that the discharge resulted in the death of another. Prince was convicted of, and sentence was imposed on, the class B felony of unlawful use of a weapon. Despite Prince’s contention to the contrary, Prince was not convicted of, nor sentenced for, the enhanced version of section 571.030.1(9). He was, therefore, not convicted of two crimes possessing as a required element a “resulting death.” Because Prince has posited a factual scenario that did not occur, we need not address the substantive issue posed by Prince’s point relied on. Point one is denied.

Point II

Prince argues that the trial court erred in denying his motions to dismiss, accepting the jury’s verdicts, and sentencing him because convictions of unlawful use of weapon and armed criminal action violated his right to be free from double jeopardy and violated section 571.015.4, since the legislature did not intend cumulative punishment. We disagree.

Standard of Review

“Whether an individual’s right to be free from double jeopardy has been violated is a question of law, which an appellate court reviews de novo. When an appellate court’s review is de novo, it need not defer to the trial court’s determination of law.” State v. Kamaka, 277 S.W.3d 807, 810 (Mo.App. W.D.2009) (citation omitted).

Analysis

In this point, Prince argues that cumulative punishments for armed criminal action and unlawful use of a weapon are barred by the armed criminal action statute, section 571.015. Prince was convicted of unlawful use of a weapon pursuant to section 571.030.1(9) for knowingly discharging a firearm from a vehicle and armed criminal action pursuant to section 571.015.

As previously noted, the Fifth Amendment’s Double Jeopardy Clause protects a defendant from multiple punishments for the same offense. As this protection has been construed to turn on whether cumulative punishments were intended by the legislature, our analysis of this point must turn on construction of section 571.015.

The armed criminal action statute, section 571.015, provides:

1. Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action....
4. The provisions of this section shall not apply to the felonies defined in sections 564.590, 564.610, 564.620, 564.630, and 564.640, RSMo.

Prince concedes that section 571,030.1(9) of which he was convicted for discharging a firearm at or from a motor vehicle is not expressly included in section 571.015.4 as an offense for which cumulative punishment is prohibited by the legislature. Nonetheless, Prince suggests we should construe section 571.015.4 to include section 571.030.1(9) within its scope because section 571.030.1(9) was enacted nearly twenty years after the legislature enacted section 517.015 and the legislature has simply neglected to amend section 571.015.4 from time to time as necessary to keep pace with changes in the specific conduct now defined to constitute an unlawful use of weapons charge. We do not agree.

The confusion with respect to what is or is not meant by the legislature to be excluded from cumulative punishment along with a conviction for armed criminal action under section 571.015 is due in large measure to the fact the statutes enumerated in section 571.015.4 (which was enacted in 1977) were renumbered/transferred in 1978 and were then repealed in 1981. See State ex rel. Green v. Moore, 131 S.W.3d 803, 807-08 (Mo. banc 2004). Notwithstanding, Section 571.015.4 has never been amended to keep pace with the transfer, repeal, revision, and recodification of the enumerated offenses for which the legislature originally expressed an intent to prohibit cumulative punishment. The challenge, therefore, has been to determine legislative intent given the antiquated references in section 571.015.4. Universally, and notwithstanding the 1981 repeal of the statutes enumerated in section 517.015.4, our courts have opted to equate the substantive scope of revised and recodified statutes with the substantive scope of the statutes originally enumerated in section 571.015.4. This is consistent with the fact that in 1982, the year after the 1981 repeal of the transferred sections enumerated in section 517.015.4, the legislature nonetheless enacted section 571.017 which provides:

Nothing contained in any other provision of law, except as provided in subsection k of section 571.015, shall prevent imposition of sentences for both armed criminal action and the crime committed by, ■with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.

(Emphasis added.) Thus, albeit with less than stellar attention to fine details, the legislature’s enactment of section 571.017 in 1982 appears clearly to have restated its continuing intention to treat the offenses described in section 571.015.4 as the only felony offenses which cannot serve as a predicate for an armed criminal action charge and as the only felony offenses for which cumulative punishment along with an armed criminal action conviction is not permitted.

Our charge, therefore, is to assess whether section 571.030.1(9), of which Prince was convicted, equates with any of the now repealed statutory offenses enumerated in section 571.015.4. We find it does not. Section 564.610 is the enumerated section Prince suggests should be equated with section 571.030.1(9). Section 564.610 was transferred in 1978 to section 571.115. Under section 564.610 (then section 571.115) prior to its repeal in 1981, the statutes prohibited the following offenses: carrying a concealed weapon; exhibiting a weapon in an angry or threatening manner; possession of a weapon while intoxicated; possessing a firearm in a church, school, election precinct on election day, court or other public assemblage; and selling or delivering a weapon to a minor. Section 571.030 revised and recodified each of these offenses as follows: section 571.030.1(1) (carrying a concealed weapon); section 571.030.1(4) (exhibiting a weapon in an angry or threatening manner); section 571.030.1(5) (possessing or discharging a firearm while intoxicated); section 571.030.1(8) (possessing a firearm in a church, election precinct on election day, or in a government building); and section 571.030.1(10) (possessing a firearm in a school).

As Prince accurately notes, our courts have had no difficulty concluding that sections 571.030.1(1), (4), (5), (8), or (10) cannot serve as the predicate offense for a charge of armed criminal action under section 571.015, and cannot, therefore, be cumulatively punished with an armed criminal action conviction. In Green, our Supreme Court held that a charge for exhibiting a lethal weapon in an angry or threatening manner under section 571.030.1(4) could not serve as the predicate offense for an armed criminal action charge under section 571.015. 131 S.W.3d at 807-08. This same result was reached in Ivy v. State, 81 S.W.3d 199, 206-08 (Mo.App. W.D.2002), and in State v. King, 748 S.W.2d 47, 50 (Mo.App. E.D.1988).

In contrast, in State v. Couts, 133 S.W.3d 52, 53 (Mo. banc 2004), our Supreme Court concluded that use of a weapon by shooting into a dwelling under section 571.010.1(3) was “not one of the types of unlawful use of a weapon listed in section 571.015.4.” Id. at 53. In Couts, the section 571.015.4 violation served as the basis for Couts’s charge and conviction for second degree murder. In turn, the second degree murder charge served as the predicate for the armed criminal action charge and conviction. Id. Because the offense described in section 571.010.1(3) had never been included within the offenses described in the enumerated statutes in section 571.015.4, the Supreme Court had no difficulty concluding the “neither section 571.015.4 nor general double jeopardy principles preclude defendant’s conviction of armed criminal action predicated on his second-degree murder conviction.” Id.

Prince ai'gues that Couts is distinguishable from his case because the Supreme Court noted that the charge of unlawful use of a weapon by shooting into a dwelling was encompassed in an already existing statute — section 562.070 — at the time section 571.015.4 was enacted. In contrast, the offense of unlawful use of a weapon by shooting from a motor vehicle did not exist until section 571.030.1(9) was enacted in 1995, eighteen years after section 571.015 was enacted. Prince suggests that the legislature’s intent with respect to incorporation of section 571.030.1(9) into the scope of section 571.015.4 is thus unclear. We disagree.

Though the Supreme Court in Couts did note that section 571.030.1(3) was encompassed in an existing offense when section 571.015 was enacted, suggesting the legislature’s failure to include that offense within the ambit of section 571.015.4 was purposeful, this observation merely added additional support for the Court’s conclusion that legislature did not intend to prohibit cumulative punishment for armed criminal action and felony murder predicated on a charge of unlawful use of a weapon by shooting into a dwelling pursuant to the clear language of section 517.015. The Court noted:

Subsection 1 of section 571.015 specifically states the legislature’s intent that a person can be convicted of armed criminal action for commission of any felony through the use of a dangerous weapon other than those specifically listed in section 571.015.4.... [Bjecause section 571.015.4 does not enjoin cumulative punishments for armed criminal action and this particular form of unlawful use of a weapon, [the defendant’s] armed criminal action conviction does not violate either section 571.015.4 or general double jeopardy principles.

Couts, 133 S.W.3d at 56.

The circumstances before us are not distinguishable from the central holding in Couts. Prince concedes that section 571.030.1(9) is not included in the list of exceptions enumerated in section 571.030.1(4). There is no legal support offered by Prince for the proposition that we can find ambiguity in section 571.015 merely because the offense described in section 571.030.1(9) did not exist at the time section 571.015 was enacted. The legislature is presumed to know the state of the law when it enacts a statute. State v. Rousseau, 34 S.W.3d 254, 261 (Mo.App. W.D.2000). Further, the legislature is presumed to intend what the statute says, and we give effect to the words based on their plain and ordinary meaning. Johnson v. Mo. Dep’t of Corr., 166 S.W.3d 110, 111 (Mo.App. W.D.2005). If anything, the fact that the legislature did not amend section 571.015.4 when it enacted section 571.030.1(9) provides as strong an indication of legislative intent as the reverse scenario involved in Couts where the specific unlawful use of a weapon offense already existed at the time section 571.015 was enacted. In either case, the legislature’s failure to act though presumed to know the state of the law suggests legislative intent not to include additional unlawful use of a weapon offenses within the scope of section 571.015.4 beyond those expressly therein enumerated. Cook v. Newman, 142 S.W.3d 880, 888 (Mo.App. W.D.2004).

Prince essentially suggests that this court should act as the legislature to create another exception in section 571.015(4). We decline to do so. Though it might be less confusing if section 571.015 barred all unlawful use of weapon offenses as predicates for armed criminal action, the Supreme Court has correctly noted this is a decision for the legislature. Couts, 133 S.W.3d at 56. Point two is denied.

Point III

For his third point, Prince claims that the trial court abused its discretion in overruling his objections to the audio recordings of his phone conversations with Ladiner while he was in jail. Prince claims that the recordings were inaudible and improperly bolstered Ladiner’s testimony. We disagree.

On April 13, 2007, six days before the victim was killed, Prince was arrested on an outstanding warrant. Between April 14 and April 17, Prince made phone calls to Ladiner from the Boone County jail. Prince was released on April 18, but later arrested that same day for Robinson’s murder. Prince made three more calls. All of these calls were recorded by the jail.

On direct, Ladiner testified generally as to the content of the conversations between him and Prince. The State showed Ladiner the compact discs which contained the recordings. Ladiner testified that he had listened to them. The State offered the recordings into evidence to which Prince objected on the basis that they were inaudible and that Ladiner had already testified to their contents rendering them improper bolstering. The trial court overruled the objection. While Ladiner was on the stand, the State played each of the recordings of his conversations with Prince, periodically stopping the recordings to ask Ladiner to explain details about the conversations.

Standard of Review

“The trial court has broad discretion to admit or exclude evidence at trial and its decision will not be disturbed absent a clear abuse of discretion.” State v. Holmquest, 243 S.W.3d 444, 449 (Mo.App.W.D.2007). “A trial court abuses its dis cretion when the decision is against the logic of the circumstances and when ‘it is so arbitrary and unreasonable as to shock the sense of justice and indicate[s] a lack of careful consideration.’ ” State v. Chism, 252 S.W.3d 178, 182 (Mo.App. W.D.2008) (citation omitted). “ ‘[A] conviction will be reversed due to admission of improper evidence only if the defendant proves prejudice by showing a reasonable probability that in the absence of such evidence the verdict would have been different.’ ” State v. Tillman, 289 S.W.3d 282, 294 (Mo.App.W.D.2009) (quoting State v. Thompson, 112 S.W.3d 57, 63 (Mo.App.2003)).

Analysis

Audibility of the Recordings

Prince generally claims that the audio recordings of his conversations from the jail were inaudible and the trial court abused its discretion in admitting them into evidence. Prince primarily relies on State v. Long, 336 S.W.2d 378, 379-80 (Mo. banc 1960), where the trial court sustained an objection to audio tapes due to their poor quality. Prince also cites to United States v. Huff, 959 F.2d 731, 737 (8th Cir.1992), and State v. Anthony, 837 S.W.2d 941, 944 (Mo.App. E.D.1992), for the statements that trial courts have discretion to admit partially inaudible tapes, and if they are unintelligible, they may render the entire recording untrustworthy. This point is without merit. Upon our review of the recordings, they are audible and, as such, the trial court did not abuse its discretion in admitting them into evidence.

Even if the recordings were partially inaudible, they are not rendered untrustworthy. State v. Taylor, 831 S.W.2d 266, 271 (Mo.App. E.D.1992). This determination is within the trial court’s discretion, which will not be disturbed absent a clear abuse of discretion. Id.

Improper Bolstering

Improper bolstering occurs when out-of-court statements are offered solely to duplicate or corroborate trial testimony. Holmquest, 243 S.W.3d at 449. Our review of the record indicates that is not the case here. Although Ladiner testified about the contents of his phone discussions with Prince, the playing of the recordings was not duplicative. Ladiner’s testimony explained context, references, and identified who was talking. This was not the same testimony in a different form as prohibited by our holding Holmquest.

Prince relies on State v. Seever, 733 S.W.2d 438 (Mo. banc 1987), and State v. Cole, 867 S.W.2d 685 (Mo.App. E.D.1993). However, both are distinguishable. In Seever, the State played a video statement of a child victim and then had the victim testify to all the elements of the case. 733 S.W.2d at 439^0. The testimony was du-plicative of the victim’s statements in the video. Id. at 441.

In Cole, the witness gave a taped statement of details of a shooting. 867 S.W.2d at 686. The witness testified at trial. Id. On cross-examination, the defense pointed out four specific inconsistencies between her trial testimony and her recorded statement and played those portions for the jury. Id. Then, the State played the entire statement over objection. Id. The Eastern District held that playing the entire tape was improper bolstering because it substantially repeated the in-court testimony of the witness. Id.

In the present case, Ladiner testified only generally about his discussions with Prince prior to the recordings being played. As the recordings were played, they were periodically stopped for clarification and explanation about some of the discussion. Often this was necessary to explain the use of slang phrases and unfamiliar terminology. The recordings were not improperly duplicative of Ladiner’s testimony.

The trial court did not abuse its discretion in admitting the audio recordings. Point three is denied.

Point IV

In point four, Prince argues that the trial court abused its discretion in overruling defense counsel’s objection to the State’s improper closing argument that Prince instructed Ladiner to “ice that dog” because it misstated the evidence and because Prince was prejudiced in being portrayed as a ruthless killer.

Standard of Review

The trial court has broad discretion in controlling closing argument, and we review the trial court rulings during closing argument for abuse of discretion. State v. Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006). “ ‘[C]ounsel is traditionally given ■wide latitude to suggest inferences from the evidence on closing argument.’ ” Nelson v. Waxman, 9 S.W.3d 601 (Mo. banc 2000) (quoting Moore v. Mo. Pac. R.R. Co., 825 S.W.2d 839, 844 (Mo. banc 1992)). “This is so ‘even though the inferences drawn are illogical or erroneous.’ ” Id. (citations omitted).

Analysis

Prince argues that the following portion of the State’s closing argument was improper:

Please go ahead and take those tapes back there. And I think — if you want to play it over and over again, you don’t even need to, because the defendant is already talking about slapping Larry, robbing him, getting in his pockets. But I think if you want to go back there and listen to these — this tape again, you’re going to hear, you’re going to hear the defendant say, “I don’t care. Ice that dog, Ice him.”

The trial court overruled Prince’s first objection and later instructed the jury to recall the evidence. Prince contends that the trial court erred because the State misstated the evidence. We disagree.

A review of the record shows that on direct, prior to playing the audio recordings, Ladiner testified generally about his conversations with Prince. Ladiner testified that Prince had told him that he wanted to “ice” McBride, and he explained that “to ice him” meant to kill him. The State played a portion of the recordings and then asked Ladiner about one statement which, after hearing the tape, Ladiner claimed was Prince saying “it’s like that.” The State stated, “He didn’t say, ‘[i]ce that dog?’ ” Ladiner replied, “That’s not what he said.”

The State’s argument was appropriate. Ladiner had answered on direct that Prince told him that he wanted to “ice” McBride. Except for the one passage of the jail tapes about which the State pressed Ladiner, no other reference to “icing” the victim is heard on the tapes, however. Though Ladiner disagreed when directly questioned that a portion of one of the tapes included Prince saying “[i]ce that dog,” the jury could have believed otherwise. Directing the jury to listen to the tapes was appropriate, therefore, in light of Ladiner’s specific testimony that Prince told him to “ice” McBride— a statement which would have been recorded on a jail tape. The State’s argument was supported by the evidence, and the trial court did not abuse its discretion. This point is without merit. Point four is denied.

Point V

For his fifth point, Prince asserts that the trial court plainly erred in admitting: (1) the testimony of Ben White about Prince’s failure to speak about his case in the audio recordings of his conversations from the jail, (2) audio recordings from jail in which Prince states to family members that he could not discuss his case on the phone at the jail, and (3) argument by the State that his silence about his involvement in the murder in the phone calls with his family from the jail should be considered evidence of his guilt. We disagree.

Standard of Review

Prince concedes that he failed to properly preserve this point, which is actually comprised of multiple subparts, and, therefore, requests plain error review pursuant to Rule 30.20. “Review of plain error under Rule 30.20 involves a two-step process. First, we must determine if the claim on its face establishes substantial grounds to find that manifest injustice or miscarriage of justice has resulted.” State v. Lewis, 243 S.W.3d 523, 525 (Mo.App. W.D.2008) (citation omitted). Not all prejudicial error can be deemed plain error. State v. Calhoun, 259 S.W.3d 53, 58 (Mo.App. W.D.2008). “Plain error is evident, obvious, and clear error.” Id. If plain error is evident on the face of the claim, then we may proceed to consider whether or not a miscarriage of justice or manifest injustice will occur if left uncorrected. Lewis, 243 5.W.3d at 525. Where no plain error appears on the face of the claim, we should decline to exercise our discretion to review the claim. Id.

Analysis

Prince argues that the State improperly argued his post-Miranda silence to incriminate him when it called its investigator, Ben White, who testified that he had listened to the audio recordings of Prince’s phone calls from the jail. White testified to what Prince did not say in those recordings, including that he never said that Ladiner was the shooter, that the occupants in the victim’s car shot back at them, or that there was a third car involved in the case — all things claimed by Prince at trial. Prince also argues that the State improperly argued his post-Miranda silence by offering into evidence the audio recordings of his phone calls from jail to his mother and grandfather in which he told them he could not talk about the case. Finally, Prince argues that the State improperly commented on his post-Miranda silence in closing argument when it argued that in the phone call to his grandfather, Prince told him that he was charged with murder and that they got Ladiner, too. The State suggested this would have been an obvious opportunity for Prince to state that he was driving and that Ladiner was the shooter, and that his failure to do so suggested that in fact Prince was the shooter.

The State is prohibited from using an accused’s silence, at the time of arrest and after receiving Miranda warnings, for impeachment purposes. However, this rule against the admissibility of an accused’s post arrest, post-Miranda silence does not apply if the accused chooses not to exercise his or her right to remain silent and elects, instead, to make a statement while in custody.

State v. Anthony, 857 S.W.2d 861, 868 (Mo.App. W.D.1993) (citing Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)). If the accused voluntarily speaks post-Mmmda, he can be impeached on his statements and his selective silence. State v. Hutchison, 957 S.W.2d 757, 763 (Mo. banc 1997).

Prince’s reliance on protection pursuant to Miranda is misplaced. Miranda is limited to custodial interrogations initiated by law enforcement. Miranda does not apply in this case because “ ‘[Recording a telephone conversation between a defendant and a third party does not involve a “confrontation with governmental authority in the context of a custodial interrogation calling for Miranda warnings.” ’ ” State v. Sardeson, 220 S.W.3d 458, 470 (Mo.App. S.D.2007) (quoting State v. Barrett, 41 S.W.3d 561, 565 (Mo.App. S.D.2001)). Therefore, Prince’s statements, which were initiated by him, were voluntary, spontaneous, and properly admitted. Id. Important to this case, his selective silence on matters is equally admissible. Hutchison, 957 S.W.2d at 763.

Prince concedes that most cases involving violations by comment on post-ML randa silence concern failure to explain conduct to police but contends, nonetheless, that a violation can also be found in the use of jail conversations. Prince relies on Franklin v. Duncan, 884 F.Supp. 1435 (N.D.Ca.1995). Franklin is neither controlling nor compelling in light of Sarde-son. The only Missouri case that Prince relies on is State v. Dexter, 954 S.W.2d 332 (Mo. banc 1997), which involved the testimony of the arresting officer that Dexter refused to answer any questions after he was arrested without an attorney present, and the State’s cross-examination of Dexter at trial regarding his silence after he was placed under arrest — fact patterns that are materially dissimilar to this case.

Prince fails to satisfy the first step of the plain error analysis. We find no plain error. Point five is denied.

Point VI

For his sixth and final point, Prince claims that the trial court abused its discretion in denying his motion for continuance to obtain police reports and to investigate whether, and to what extent, Ladiner was involved in a murder in the state of California. Prince claims that the State created the need for the continuance by its late disclosure of the California murder. Prince claims he needed to investigate La-diner’s involvement to establish Ladiner’s bias in his willingness to lie and implicate his family to save himself from criminal liability.

Standard of Review

We review the trial court’s denial of a motion for continuance for abuse of discretion. State v. Clark, 263 S.W.3d 666, 669 (Mo.App. W.D.2008). We will reverse the denial of a motion for continuance only when the trial court enters a ruling that is clearly illogical and is arbitrary and capricious. Id. “A ‘very strong showing’ is required to prove abuse of that discretion, and the party requesting the continuance bears the burden of showing prejudice.” State v. Thompson, 985 S.W.2d 779, 785 (Mo. banc 1999) (citation omitted).

Analysis

Prince claims that the State disclosed that Ladiner cooperated in a murder investigation in California and that the California authorities refused to send defense counsel any records. In his deposition, Ladiner denied any involvement in the murder and denied being an informant. Prince contends that the State’s late disclosure of Ladiner’s alleged involvement in a murder in California required a continuance and that without a continuance, the defense was left with Ladiner’s self-serving assertions that he was not involved and did not snitch on his family to save himself.

Prince cites to a line of cases that are distinguishable in that they all involve the State’s late disclosure of witnesses or evidence used at trial. State v. Whitfield, 837 S.W.2d 503 (Mo. banc 1992) (Supreme Court held that a short delay was necessary for the defense to prepare to cross-examine the expert witness who was endorsed on the morning of trial, who linked the gun to the murder); State v. Perkins, 710 S.W.2d 889 (Mo.App. E.D.1986) (abuse of discretion in denying continuance to allow sufficient time to contact potential alibi witness where State disclosed written statement of defendant, which listed alibi witnesses, during voir dire); State v. McIntosh, 673 S.W.2d 53 (Mo.App. W.D.1984) (abuse of discretion in denying continuance due to late endorsement of witness on the day before trial whose testimony tended to refute or contradict defendant’s version of events).

None of the cases cited by Prince are controlling in this case. Here, the State did not call any witness from the California case, and there was no indication that any investigation of that case would have aided in Prince’s defense. Although Prince generally alleges that he was prejudiced by the State’s late disclosure of the California case, he offers no indication of what specific prejudice resulted. Prince claims that the time to investigate the California matter was critical to see if evidence could be discovered that might demonstrate to the jury Ladiner’s willingness to lie about his family in order to save himself. The argument is speculative and remote at best. There was sufficient other evidence before the jury which would have permitted the jury to question Ladiner’s reliability as a witness, including his participation in the same crime for which Prince was being tried. There is simply no basis to conclude that time to investigate a tangential criminal proceeding to see whether or not some angle could be developed to further implicate Ladiner’s credibility would have been productive.

The trial court did not abuse its discretion in denying Prince’s motion for continuance. Point six is denied.

Conclusion

We, therefore, affirm the trial court.

All concur.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . Prince was originally charged with an additional count of armed criminal action but the State later dropped the charge.

      . Prince has not asked us to review whether his convictions for felony murder and for the unenhanced version of unlawful use of a weapon in violation of section 571.030.1(9) violate section 556.041(3), though we note that section 565.021.2 expresses the legislature's intention that "the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter.”

      . We note that Prince does not argue that these two convictions are barred by Missouri's double jeopardy rules in section 556.041.

      . The Supreme Court further noted that any dicta in the decisions in Ivy or King suggesting that all types of unlawful use of a weapon offenses found in section 571.030 are barred as predicates for armed criminal action should be ignored. Couts, 133 S.W.3d at 56 n. 6.

      . Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Franklin involved a daughter, with prosecu-torial involvement and the only eye witness against her father, going to the jail in an attempt to get her father to confess to murder. Father did not initiate the conversation and did not participate in any conversation. When daughter told father that “he should tell the truth," he pointed to the sign that stated that “conversations may be monitored,” and otherwise remained silent. The court held reference to Father's silence violated his right against self-incrimination. 884 F.Supp. at 1445-46.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Bernardo COSTA, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71054.
    Missouri Court of Appeals, Western District.
    March 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.
    Bernardo Costa, Appellate pro-se.
    Jamie P. Rasmussen, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.
   ORDER

PER CURIAM:

Bernardo Costa appeals from the Circuit Court of Carroll County’s dismissal of his motion to reopen his Rule 29.15 post-conviction proceedings. After a thorough review of the record, we conclude that the correct result was reached. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: MARK D. PFEIFFER, Judge.

text:
    STATE of Missouri, Respondent, v. Tony M. BOWMAN, Appellant.
    No. WD 70366.
    Missouri Court of Appeals, Western District.
    March 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer Denied June 29, 2010.

      Frederick J. Ernst, Assistant Appellate Defender, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   MARK D. PFEIFFER, Judge.

Tony M. Bowman (Bowman) appeals the trial court’s judgment convicting him, after a jury trial, of one count of first-degree burglary in violation of section 569.160. On appeal, he presents two points in which he challenges the sufficiency of the evidence and the trial court’s verdict director. We affirm.

Statement of Facts

Jerry Morris (Morris) and his wife, Achiella Morris (Achiella), purchased a duplex at 3925 Troost in Kansas City, Missouri. The duplex consists of a downstairs and upstairs apartment. At the front of the duplex is a door leading to a small common area hallway. The hallway contains two doors, which lead to the two apartment units. The two apartments also share a common backdoor area.

Morris and Achiella purchased the duplex with the intent of renovating it so they could rent it. In May 2007, Morris and Achiella were still in the process of renovating the duplex and neither apartment unit was occupied by a tenant. In order to prevent entry into the duplex during the ongoing renovation, Morris secured two-by-four boards across the front door.

On May 7, 2007, Bowman and his accomplice went to the duplex at 3925 Troost. They tore down the two-by-four boards and entered the small hallway. They pried a panel off the downstairs apartment’s door and entered the downstairs apartment. While they were in the downstairs apartment, they stole some of Morris’s tools. After taking these tools, Bowman and his accomplice went back to the small hallway and then went to the upstairs apartment. Bowman and his accomplice stole copper piping from the upstairs apartment.

While they were in the upstairs apartment, Morris and Achiella returned to the duplex. As they approached the duplex, they realized that someone had removed the two-by-four boards from the front door. Morris and Achiella went to the downstairs apartment. At this time, they heard people in the upstairs apartment. Achiella called the police. Morris went back to the common area hallway. At this time, Bowman and his accomplice tried to exit the upstairs apartment by going through the front door but Morris held the door shut. Bowman and his accomplice then tried to exit the upstairs apartment through the common backdoor area. The back door was locked so Bowman and his accomplice entered the downstairs apartment from the backdoor area. They ran through the downstairs apartment to its front door. At this time, Bowman’s accomplice struck Achiella. Bowman and his accomplice exited through the downstairs apartment’s front door and passed Morris on their way out of the common area entry way.

The police eventually apprehended both Bowman and his accomplice. The State charged Bowman with, among other things, one count of burglary in the first degree in violation of section 569.160. The State’s information charged that Bowman “knowingly entered unlawfully in a building, located at 3925 Troost, Kansas City, MO” while “present in such building Jerry Morris, a person who was not a participant in the crime.” After the presentation of evidence, the trial court submitted Instruction No. 8 to the jury, which instructed the jury that Bowman was guilty of first-degree burglary if, among other things, the jury found that Bowman “knowingly entered unlawfully in a building, located at 3925 Troost” while “Jerry Morris was present in the building.” Bowman did not object to this instruction. The jury returned a verdict finding Bowman guilty of first-degree burglary. The trial court entered judgment against him and sentenced him to a ten-year term in the Missouri Department of Corrections. This appeal follows.

Sufficiency of the Evidence

In his first point on appeal, Bowman claims that the trial court erred in overruling his motion for judgment of acquittal on the charge of first-degree burglary because the State failed to present evidence on one of its proof elements: that a person who was not piarticipating in the crime was present in the structure. Bowman concedes that Morris was present in the downstairs apartment and in the common area hallway when Bowman was in the upstairs apartment. Bowman maintains, however, that the downstairs and upstairs apartments are separate buildings for the purpose of section 569.160 and that the common area hallway is not part of either building. Thus, Bowman claims that, because Morris never entered either apartment at the same time he was committing the robberies therein, Morris was not “present in the structure.”

This court’s review of whether or not the trial court erred in overruling Bowman’s motion for judgment of acquittal is limited to determining whether or not the evidence was sufficient to persuade a reasonable juror, beyond a reasonable doubt, of each of the crime’s elements. State v. Moran, 297 S.W.3d 100, 102 (Mo.App. W.D.2009). In conducting this review, we do not weigh the evidence. Id. Rather, we review the evidence and the reasonable inferences from that evidence in a light most favorable to the jury’s verdict and disregard all contrary evidence. Id.

The Due Process Clause requires the State to prove every element of the crime charged beyond a reasonable doubt. Id. In this case, the State charged Bowman with, among other things, one count of the class B felony of first-degree burglary in violation of section 569.160. Section 569.160 states that:

A person commits the crime of burglary in the first degree if he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, he or another participant in the crime:
(1) Is armed with explosives or a deadly weapon; or
(2) Causes or threatens immediate physical injury to any person who is not a participant in the crime; or
(3) There is present in the structure another person who is not a participant in the crime.

In its information in lieu of an indictment, the State alleged that:

[I]n that on or about 7th day of May, 2007, in the County of Jackson, State of Missouri, the defendant, either acting alone or purposefully in concert with another, knowingly entered unlawfully in a building, located at 3925 Troost, Kansas City, MO and owned by Jerry Morris, for the purpose of committing stealing therein, and while in such building there was present in such building Jerry Morris, a person who was not a participant in the crime.

Thus, given the law of section 569.160 and the State’s information, to prove its case, the State was required to present evidence establishing that (1) Bowman knowingly entered a building located at 3925 Troost Avenue unlawfully, (2) Bowman did so with the purpose of committing the crime of stealing, and (3) Morris was present in the building while Bowman was committing the crime. MAI-CR3d 323.52; Huntley v. State, 204 S.W.3d 668, 673 (Mo.App. S.D.2006).

Section 569.010 lists the definitions for section 569.160. It does not define the term “building.” State v. Washington, 92 S.W.3d 205, 208 (Mo.App. W.D.2002). Section 569.010(4), however, does state that “[i]f a building or structure is divided into separately occupied units, any unit not occupied by the actor is an ‘inhabitable structure of another[.]’ ” (Emphasis added.) Thus, if the apartment units in question were “occupied” at the time of Bowman’s crime, there would be no question that each apartment unit would be deemed a separate “inhabitable structure,” and the State would be required to prove that the elements of the charged criminal offense occurred in one or the other duplex apartment unit, rather than the overall duplex. But, in the present instance, both of the units were undergoing renovation and neither was “occupied.” Thus, we question whether Bowman can successfully argue that section 569.010(4) requires that a vacant building with two unoccupied apartment units must be treated as two separate “inhabitable structures” for the purpose of the burglary statute that he was charged with.

Having said the above, the Eastern District of this court has interpreted section 569.010(4) to mean that each apartment in a multi-unit building is a separate inhabitable structure, even where one of the units is unoccupied. State v. Harris, 873 S.W.2d 887, 888-89 (Mo.App. E.D.1994). While such an interpretation ignores the “occupancy” precondition in section 569.010(4), we stop short of refusing to follow the precedent of Harris as the facts of the present case are factually distinguishable, rendering the “one building” versus “two apartment units” debate moot.

In the case at hand, the evidence established that Morris was in the common area hallway when Bowman robbed the upstairs apartment and attempted flight from the duplex. Bowman himself concedes in his brief that, if the duplex common area was part of the upstairs apartment, then Morris was present in the structure and the State presented sufficient evidence of his guilt of the charged criminal offense.

Neither section 569.010 nor section 569.160 explains whether or not the hallways or common areas outside an apartment unit in a multi-unit building constitute part of the apartment unit for the purposes of section 569.160. Our research has disclosed no cases in Missouri addressing the issue. Thus, we must interpret the term “building” in a manner designed to give effect to the intent of the General Assembly as to whether or not the legislature intended for the interpretation of “building” to include common area hallways of a multi-unit building. State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007). In the absence of statutory definitions, we may derive the plain and ordinary meaning of any term by considering the context of the entire statutory scheme. Id. We may also consider the statute’s purpose. Harper v. Dir. of Revenue, 118 S.W.3d 195, 199 (Mo.App. W.D.2003) (overruled on other grounds by Akins v. Director of Revenue, 303 S.W.3d 563 (Mo. banc 2010)).

In the context of a multi-family residential unit like an apartment complex, Bowman argues that we must construe the definition of building narrowly to include only the areas under the tenant’s exclusive control. Bowman argues that we cannot extend the definition of building or inhabitable structure to hallways and common areas because a tenant lacks exclusive control over the hallways and common areas. For example, while a tenant may have the right to exclude someone from his or her apartment, the tenant would not necessarily have the right to exclude someone from the common areas. Bowman claims that if we were to conclude that a common area is part of a tenant’s apartment, then a tenant could have another tenant arrested for trespassing merely because that tenant was in the hallways or common areas. We disagree. We conclude, based on case precedent from other states, similar Missouri cases, and the public policy behind section 569.160, that secured common areas and hallways of a multi-unit building that are not otherwise open to the public can be considered a part of an apartment unit for the purpose of section 569.160.

Many other states that have considered this issue have concluded that the hallways in an apartment complex are, for the purposes of their burglary statute, part of the apartment. For example, in Commonwealth v. Goldoff, 24 Mass.App.Ct. 458, 510 N.E.2d 277 (1987), the State convicted the defendant of burglary under a statute, which made it a crime to assault someone in his dwelling house:

Whoever breaks and enters a dwelling house in the night time, with intent to commit a felony, or whoever, after having entered with such intent, breaks such dwelling house in the night time, any person being then lawfully therein, and the offender being armed with a dangerous weapon at the time of such breaking or entry, or so arming himself in such house, or making an actual assault on a person lawfully therein, shall be punished by imprisonment in the state prison for life or for any term of not less than ten years.

Mass. Gen. Laws Ann. Ch. 266 § 14 (2008); Goldojf, 510 N.E.2d at 279.

The undisputed evidence, however, established that the defendant assaulted the victim in the hallway of his apartment complex. Goldojf, 510 N.E.2d at 279. Like Bowman, the defendant claimed on appeal that the term dwelling house meant the victim’s apartment and any areas that he had under his exclusive control. Id. The defendant argued that, since the victim did not have exclusive control over the hallway, it was not part of the victim’s dwelling house. Id. In support of his position, the defendant cited to cases establishing that an apartment tenant has no reasonable expectation of privacy in areas shared by all the tenants. Id.

In rejecting the defendant’s argument, the court found that, while for many claims or crimes, a tenant must show that he or she had exclusive control over the premises, the courts had always construed the burglary statutes broadly and had never required the victim to have exclusive control over the area:

As to all the cases relied upon by the defendant ..., it can be said of each that the defendant-tenant’s claim depended upon a right of exclusive use of those areas to which, it was contrarily found, there was free and open access and all the tenants had a right to come and go.
It is the purpose of burglary statutes, however, to prohibit that conduct which violates a person’s right of security in a place universally associated ivith refuge and safety, the dwelling house. To further rather than frustrate the purpose of these statutes, the term “dwelling house” as used in the context of burglary always has been construed broadly. “By the common law, every house for the dwelling and habitation of man is taken to be a mansion house, wherein burglary may be committed.... Any outhouses, within the curtilage or some common fence as the mansion itself, must be considered as parcel of the mansion.... [I]f the outhouses be adjoining the dwelling house, and occupied as parcel thereof, though there be no common enclosure or curtilage, they may still be considered as parts of the mansion.” The “historical background of the burglary statutes, the traditional meaning given to ‘dwelling’ and ‘dwelling house’ by legal dictionaries and treatises,” show that the term may comprehend areas within a person’s place of habitation but which are beyond his exclusive control.

Id. at 280 (emphasis added) (citations omitted).

Based on this historical precedent, the court concluded that the victim’s hallway could be considered part of the victim’s dwelling house when the hallway was secure:

When this historical right to security in one’s place of habitation is considered in the context of contemporary multi-unit residential structures, we can think of no reason why that right should not apply to tenants who reach their apartment units by a common hallway which they have collectively secured from the general public by a locked door.

Id.; State v. RanieH, 560 A.2d 350, 353 (R.I.1989); People v. Maisonet, 304 A.D.2d 674, 760 N.Y.S.2d 58, 59-60 (N.YApp.Div. 2003) (stating that “[t]he hallway of an apartment building may constitute a ‘dwelling,’ ... if it is inaccessible to the public.”); People v. Torres, 162 A.D.2d 385, 556 N.Y.S.2d 920, 921 (NYApp.Div.1990); see also 12A C.J.S. Burglary § 37 (2004) (stating that generally “a common area or hallway in an apartment building that is collectively secured from the general public is part of a dwelling house for purposes of breaking and entering statute”); 13 Am. Jur.2d, Burglary, § 6 (2009) (noting that common structures of apartment buildings like hallways are included in the definition of dwelling house for the purposes of burglary).

Similar to other states, the General Assembly’s goal in making burglary a crime in Missouri is to protect homes and buildings wherever they are located. State v. Liffick, 815 S.W.2d 132,134 (MoApp. E.D. 1991). Furthermore, in enacting section 569.160, the General Assembly’s goal is to increase the penalties for a person who puts an innocent person’s life in harm’s way when he or she commits the burglary. See State v. Washington, 92 S.W.3d 205, 209 (Mo.App. W.D.2002) (stating the general purpose of section 569.160).

Consistent with this purpose, Missouri has also interpreted the terms building and inhabitable structure broadly. For example, in State v. Walker, 698 S.W.2d 237 (Mo.App. S.D.1985), the court dealt with the issue of whether or not the defendant had committed a crime with another person present in the structure when the evidence established that he robbed a floral shop but that the other people were in their residence, which was attached to the shop. 693 S.W.2d at 238. The court concluded that the residence and the flower shop were one building for the purposes of section 569.160:

Proof that any burgled building contained people who were not participants in the ongoing felonious break-in meets the statutory requirement to prove first degree burglary. The living quarters and flower shop were integral parts of the same structure. The [victims] were physically present in the structure at the time of the incident in question, and there was a felonious burglary of the structure for the purpose of stealing.

Id. at 239.

Missouri courts have also held that a house’s garage could be part of a building for the purposes of section 569.160 as long as the house is accessible from the garage. For example, in State v. Allen, 944 S.W.2d 580 (Mo.App. W.D.1997), the court held that the State made a submissible case for first-degree burglary when it presented evidence that the defendant knowingly entered the house’s garage where it appeared that the house’s residents could access the garage directly from inside of the house. 944 S.W.2d at 582-83; see also Washington, 92 S.W.3d at 209-10 (holding that the garage did not constitute a part of the home in that case only because there was no connection between the inside of the house and the inside of the garage).

This reasoning is easily applicable to the common areas of an apartment building. In many cases, these areas are collectively secured by the tenant group and not otherwise open to the public. And, while one particular tenant does not have exclusive control over common areas so such tenant could not, for example, have another tenant arrested for trespassing, each tenant should feel secure in those areas. A criminal intruder who unlawfully enters those areas violates that security. Furthermore, a criminal intruder who enters those areas is likely to encounter other people, which increase the odds that the intruder’s criminal activities will put an innocent person in harm’s way. Thus, we conclude that the common areas in an apartment building can constitute part of the apartment for the purposes of section 569.160 as long as the common area in question is a secured area not otherwise open to the public. Of course, since the physical features of a multi-residential structure can vary, whether or not the common areas of the structure are part of each building will be dependent on the factual circumstances of each case. Gol-doff, 510 N.E.2d at 281.

In this case, we believe that the front common area of 3925 Troost is part of both apartments. The undisputed evidence established that Morris had secured the front entry of 3925 Troost to prevent unwanted entry from the public. See Maiso-net, 760 N.Y.S.2d at 59-60 (holding that hallway could be considered part of apartment if it was inaccessible to public). Furthermore, the undisputed evidence established that the common area back door was sealed. A person could enter and leave the upstairs apartment only through the front common area. This is sufficient for us to conclude that the front area is an integral part of both apartments. Thus, the common area is a part of both apartments. Since the undisputed evidence established that Morris was in the front common area during the burglary incident, the State presented sufficient evidence that Morris was present in the subject building, even if we accept Bowman’s argument that the building in question was the upstairs apartment unit of the building. The trial court did not err in overruling Bowman’s motion for judgment of acquittal.

State’s Verdict Director

In his second point, Bowman claims that the trial court plainly erred in submitting to the jury Instruction No. 8, the State’s verdict director on the first-degree burglary charge, which stated that Bowman was guilty if he “knowingly entered unlawfully in a building, located at 3925 Troost Ave,” and “Jerry Morris was present in the building” because the instruction failed to specify the precise apartment unit. Specifically, Bowman claims that Instruction No. 8 was flawed because it did not identify the building as either the downstairs apartment or upstairs apartment.

Pursuant to Rule 28.02(c) “[wjhenever there is an MAI-CR instruction or verdict form applicable under the law and Notes on Use, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other instruction or verdict form.” “The giving or failure to give an instruction or verdict form in violation of this Rule 28.02 or any applicable Notes on Use shall constitute error, the error’s prejudicial effect to be judicially determined .... ” Rule 28.02(f). Bowman, however, concedes that he did not preserve his claim of instructional error and requests plain error review pursuant to Rule 30.20.

Rule 30.20 grants us authority to consider “plain errors affecting substantial rights ... when [we find] that manifest injustice or miscarriage of justice has resulted” from the error. Under plain error review, we must first examine the record to determine whether or not the appellant’s claim is one that facially shows grounds for believing that an error resulted in manifest injustice to him. State v. D.W.N., 290 S.W.3d 814, 817 (Mo.App. W.D.2009). If this review establishes grounds for believing that an error occurred and that the error resulted in manifest injustice, then we review the record to determine whether or not the error actually resulted in manifest injustice. Id. In the absence of such a determination, we decline to exercise our discretion to review for plain error under Rule 30.20. Id. We use this rule sparingly and will not use it to review every alleged trial error that has not been properly preserved for review. Id.‘Plain error is evident, obvious, and clear error.’ ” Id. (quotation omitted).

It is well-established law that instructional error rarely rises to the level of plain error. Id. at 827. To establish that the trial court plainly erred in submitting a jury instruction, the defendant must establish that the instruction so misdirected or failed to instruct the jury that it is apparent that the error affected the jury’s verdict and caused a manifest injustice or miscarriage of justice. Id. The defendant bears the burden of proof. Id. Hence, to succeed on his claim of instructional error, Bowman has the burden of not only proving that Instruction No. 8 clearly and obviously failed to properly instruct the jury but also that the error so affected the verdict that it caused him manifest injustice or a miscarriage of justice.

In this case, the trial court submitted Instruction No. 8 to the jury. Instruction No. 8, the State’s verdict director, stated that:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about May 7, 2007, in the County of Jackson, State of Missouri, the defendant knowingly entered unlawfully in a building, located at 3925 Troost Ave., Kansas City, Missouri and owned by Jerry Morris, and Second, that defendant did so for the purpose of committing the crime of stealing therein, and Third, that while the defendant was in such building, Jerry Morris was present in the building and Jerry Morris was not a participant in the crime,
[Tjhen you will find the defendant guilty under Count I of burglary in the first degree.

(Emphasis added.)

As we noted in Bowman’s first point, while section 569.010(4) preconditions its definition of separate inhabitable structures on whether or not the units are “occupied,” Harris, 873 S.W.2d at 889, arguably holds that each apartment unit at 3925 Troost was a separate building or inhabitable structure for the purposes of section 569.160. Thus, because Instruction No. 8 did not identify the building as either the downstairs or upstairs apartment, it had the potential to create a situation where the jury could have found that Bowman was guilty because he robbed the upstairs apartment even though Morris was present in the downstairs apartment or found that Bowman was guilty because he robbed the downstairs apartment even though Morris was present in the upstairs apartment. To eliminate any such possible confusion, Instruction No. 8 should have identified the building in paragraphs one and three as either the downstairs apartment or upstairs apartment. For the sake of argument, even if we conclude that the trial court committed plain error in submitting Instruction No. 8, we are still obligated to review the record to determine whether or not a manifest injustice or a miscarriage of justice actually occurred. D.W.N., 290 S.W.3d at 828. We do not believe that it did.

Our review of the record establishes that the trial court’s error did not result in manifest injustice. Well-established law states that the trial court does not commit plain error when it submits a verdict director that omits or misinforms the jury about an essential element of the crime if that element is not in dispute at trial. See State v. McFarland, 259 S.W.3d 621, 624 (Mo.App. S.D.2008); State v. Wright, 30 S.W.3d 906, 912 (Mo.App. E.D. 2000).

In that regard, at trial, Bowman conceded that someone robbed the upstairs apartment. Bowman also conceded that Morris entered the common area between the apartments during the robbery, which was, for the purpose of the burglary statute, a part of the upstairs apartment. Because of these concessions, Bowman actually conceded at trial that the State had established that someone committed first-degree burglary. Bowman’s defense at trial was that he was not involved in the robbery and that Morris mistakenly identified him as one of the robbers. The only issue at trial was whether or not Bowman was the perpetrator of the crime. Since Bowman conceded that Morris was present in the common area when someone robbed the upstairs apartment, the trial court’s error in Instruction No. 8 could not have affected the jury’s verdict. See, e.g., State v. Davis, 210 S.W.3d 229, 239 (Mo. App. W.D.2006) (holding that trial court’s instructional error on issue of deliberation did not cause the defendant any manifest injustice because the defendant did not challenge the evidence on deliberation at trial and, instead, argued that he was not involved in the crime); State v. Busch, 920 S.W.2d 565, 569 (Mo.App. E.D.1996).

We, therefore, affirm the trial court’s judgment.

JAMES EDWARD WELSH, Presiding Judge, and KAREN KING MITCHELL, Judge, concur.

      . All statutory references are to RSMo 2000, unless otherwise indicated.

      . All rule references are to Missouri Rules of Criminal Procedure 2009, unless otherwise indicated.