Following a jury trial, Orlando Naylor (hereinafter, “Naylor”) was convicted of first-degree burglary, section 569.160, RSMo 2000,
Naylor raises three points on appeal. Naylor claims, in two separate points, there was insufficient evidence to support his conviction for first-degree burglary. Naylor further claims the circuit court abused its discretion by erroneously admitting testimony that demonstrated Naylor’s propensity to engage in criminal activity. The circuit court committed no error; the judgment is affirmed.
Factual and Procedural Background
On May 15, 2014, two employees at the Farm Fresh Milk Store in Collinsville, Illinois, were closing the store for the day and noticed that the change bag was missing. The change bag usually was kept in the back office, which had a sign stating, “Employees only.” The employees then viewed their security cameras. An outside security camera showed a car back up to the side of the building at about 2:30 p.m. The car’s driver then entered the building. The inside security camera showed the driver went through the store and into the office. The driver searched the desk and filing cabinet where the change bag usually was kept. Upon discovering the change bag, the driver removed the money, went back into the store area, and made a purchase prior to leaving.
After viewing the store’s security camera video, the employees called the police. Detective Christopher Warren of the Col-linsville Police Department ipvestigated the theft. After viewing the security camera video, he identified the vehicle as a two-door Pontiac Grand Prix. The vehicle was a burnt orange color with “purplish” color stripes. The driver appeared to be wearing light tan pants and a baseball cap.
Also on May 15, 2014, the cook (hereinafter, “Cook”) at the Sandwich Shop in Collinsville, Illinois, observed a man in the kitchen at 3 p.m. Cook stated he was the only person allowed in the kitchen, and Cook asked the man what he was doing in the kitchen. The man asked if the Sandwich Shop was hiring. Cook informed him that they were not hiring. Cook noted that the man in the kitchen spoke with a low, raspy voice. The man then departed through the back door.
Another employee from the Sandwich Shop followed the man out the back door and observed him getting into a burnt orange-colored vehicle. That employee recorded the first part of the license plate as “PH5” and noted that there was also a “6” on the license place.
On May 16, 2014, Melissa Giesler (hereinafter, “Giesler”) arrived to work in the early morning at Missy’s Family Restaurant in Ozora, Missouri. Missy’s Family Restaurant had an office that had an “Office” sign on the door, In front of the office, there was a place to hang clothes and some filing cabinets. The office was inaccessible from outside the building; one had to go through an interior hallway to enter it. The nearest exterior door to the office was a side door, which was kept locked and not used by the general public. That side door could only be unlocked from inside the building, and it was acces
When Giesler arrived at work, she went into the office and placed her purse on a desk. After the restaurant closed that night, Giesler returned to the office and noticed that $165 was missing from her purse. Giesler also noticed that the side door was unlocked.
Giesler contacted Mitzi Aufdenberg (hereinafter, “Aufdenberg”), the general manager of the nearby Ozora Truck Stop, inquiring as to whether she could look at the truck stop’s surveillance tapes. Aufden-berg was able to view some of the surveillance video immediately, but she was unable to view the full surveillance video until the following day. The surveillance video showed a person parking a vehicle at the Ozora Truck Stop, getting out, and walking out of view. Shortly thereafter, the same person returned to the vehicle. Further, the person who exited Missy’s Family Restaurant by the side door had the same appearance as the person who had parked at the Ozora Truck Stop.
On May 30, 2014, Officer Jerod Darnell (hereinafter, “Officer Darnell”) stopped a car for a traffic violation. The car was a 2001 Pontiac Grand Prix with the license plate “PH5 U6Y.” Naylor was the driver. Officer Darnell’s partner recognized Nay-lor’s car as matching the description of the Missy’s Family Restaurant surveillance video. Naylor was placed under arrest and consented to a vehicle search. Detective Austin Clark (hereinafter, “Detective .Clark”) was called and arrived on the scene. Detective Clark searched Naylor’s ear, discovering $675 in cash and a baseball cap.
Subsequently, Detective Clark interviewed Naylor. Detective Clark showed Naylor pictures from the surveillance video at Missy’s Family Restaurant, but Nay-lor denied being the person in the video and maintained he had nothing to do with the crime. Naylor acknowledged the baseball cap was his and explained the cash was from poker winnings and money given to him by his girlfriend.
During their investigation, the police provided the surveillance video from the Farm Fresh Milk Store and Missy’s Family Restaurant to Randy Lee Schott (hereinafter, “Schott”), a body shop manager. Schott examined the surveillance video. Schott was able to identify the car in both videos. He noted the car had the same damage and aftermarket additions. Schott determined that, based upon the car’s specific characteristics, the cars depicted “appear similar.”
Naylor was charged as a prior and persistent offender with one count of first-degree burglary, one count of stealing, and one count of driving with a revoked license. The state charged that Naylor committed first-degree burglary on May 16, 2014, when he knowingly and unlawfully entered a room in Missy’s Family Restaurant not open to the public.
The jury found Naylor guilty of first-degree burglary, misdemeanor stealing, and driving while revoked. Naylor appealed. This Court has jurisdiction pursuant to article Y, section 10, of the Missouri Constitution.
First-degree burglary
Naylor claims there was insufficient evidence presented at trial to convict him of first-degree burglary. Naylor asserts there was insufficient evidence presented from which the jury could have found beyond a reasonable doubt that he knowingly entered unlawfully into an area of Missy’s Family Restaurant and that another person was present in the structure.
To determine whether the evidence presented was sufficient to support
The offense of first-degree burglary occurs when a person “knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” Section 569.160.1. Additionally, one of the following three circumstances exists: (1) the person is armed with a deadly weapon; (2) the person causes or threatens immediate physical injury to any person who is not a participant in the crime; or (3) another person, who is not a participant in the crime, is present in the structure. Id.
Knowingly Entered Unlawfully
Naylor asserts there was insufficient evidence presented from which a juror could conclude that he knowingly entered unlawfully into the office area of Missy’s Family Restaurant. Naylor claims the state failed to demonstrate that he knew he was not allowed to be in the office area because the sign on the door to the office only stated, “Office,” and there was no indication that restaurant patrons were prohibited from entering.
A person enters or remains unlawfully on a property “when he [or she] is not licensed or privileged to do so.” Section 569.010(8). “A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public.” Id. “Knowledge is typically inferred from circumstantial evidence because direct evidence is rarely available.” State v. Hunt,
One indication that a defendant knowingly enters unlawfully is whether there is signage, which would demonstrate the area is not open to the public. In State v. Norfolk,
Yet, signage indicating that an area is not open to the public does not need to be as explicit as in Norfolk. In State v. Girar
Conversely, when there is no signage to demonstrate that an area of a public building is not open to the public, it is possible that a person may not “knowingly enter unlawfully.” In State v. Weide,
Similarly, in State v. Brown,
Whether a defendant knowingly enters unlawfully can depend upon the defendant’s conduct and whether the defendant attempts to conceal his or her activity. A defendant’s conduct “relevant to show a consciousness of guilt or a desire to conceal the offense [is] admissible because [it] tend[s] to establish the defendant’s guilt of the charged crime.” State v. Barton,
In State v. Oropeza,
In this case, it is clear that Naylor knowingly entered unlawfully into the office of Missy’s Family Restaurant. The only accessible entrance to the restaurant’s office was from the public area of the restaurant. The door clearly was marked, “Office,” at the end of a hallway leading away from the restaurant portion of the building, and past the area for employees’ coats and lockers, indicating that it was a non-public area of the building. An office is not an area of a restaurant that a reasonable person would expect to be open to the public. Further, restaurant patrons typically park in the parking lot of that establishment. Naylor did not park outside Missy’s Family Restaurant; instead, he parked at a nearby gas station and then walked to Missy’s Family Restaurant. The combination of the signage on the office door and Naylor’s furtive action of parking at a different business indicate that he knowingly entered unlawfully into the office of Missy’s Family Restaurant. On these facts, it was up to the jury to determine whether the office was not an area of a restaurant that a reasonable person would expect to be open to the public and whether Naylor knowingly "entered it unlawfully. This was sufficient evidence to convict Naylor of first-degree burglary.
Presence of Another in the Structure
Naylor asserts that there was insufficient evidence to demonstrate that another person, not a participant in the crime, was present in the building to support. his first-degree burglary conviction. Naylor claims the state failed to prove that anyone was present in the office at the time of the crime. Naylor cites State v. Washington,
In Washington, the defendant was charged with first-degree burglary based upon the allegation that he entered into a garage and removed tools while the victims were present in the home. Id. at 207. The court found that the garage did not qualify as part of the home’s inhabitable structure under section 569.010(2). Id. at 209. The garage the defendant entered was attached to the home’s structure; but the garage and the home’s living space were not connected by an interior door. Id. The court stated, “it appears that one of the evident purposes behind the first-degree burglary statute is to increase the penalty for someone who puts.an innocent in harm’s way during a burglary.” Id.
Naylor extrapolates from Washington, arguing that because the office was in a private portion of the restaurant building, it similarly was disconnected from the restaurant’s public area, and he could not be guilty of first-degree burglary. Naylor’s reasoning is faulty.
First, Washington makes a clear distinction between the garage’s structure and the house’s living space, finding they were separate building structures. Washington,
Second, section 569.010(8) contemplates that one building may contain both public and private areas. Thereby, Naylor’s assertion that a private office must be completely separate from the public portions of the building is without merit.
Our courts have found consistently that when there is another person in the building, as compared with the room as asserted by Naylor, there is sufficient evidence to support a charge of first-degree burglary. See State v. Bowman,
In this case, Giesler was present in the building while Naylor entered the office of the same building. The office for the restaurant and the restaurant were integral parts of the same building. The office was located at the back of the building down a hallway. Because the undisputed evidence established that Giesler was in the restaurant during the incident, the state presented sufficient evidence that Naylor and another person, not participating in the crime, were present in the same building as required by section 569.160.1(3). The circuit court did not err.
Evidence of Uncharged Misconduct
Naylor claims the circuit court abused its discretion in allowing testimony regarding the theft and attempted theft in Illinois that occurred on May 15, 2014. Naylor asserts that this evidence had no legitimate tendency to establish his guilt for the theft at Missy’s Family Restaurant, was more prejudicial than probative, and was presented only to demonstrate he had a propensity to commit burglaries of businesses.
Circuit courts retain wide discretion over issues of relevancy and admissibility of evidence. State v. Blurton,
Generally, “proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he [or she] is on trial.” State v. Vorhees,
There are, however, “exceptions under which otherwise inadmissible evidence may be admitted.” Primm,
In this case, the surveillance video from Missy’s Family Restaurant only revealed the general appearance of the suspect and his car. Naylor denied that he was the person on the surveillance video at Missy’s Family Restaurant. Therefore, the suspect’s identity was at issue.
The state admitted the evidence from the crimes in Illinois to establish Naylor as the person who committed the theft at Missy’s Family Restaurant. The evidence from the crimes in Illinois focused on the similarities between the suspect’s vehicle, appearance, and voice on the day before the theft at Missy’s Family Restaurant.
Following a theft at the Farm Fresh Milk Store, the employees and Officer Warren observed the suspect get into a burnt orange car with “purplish” stripes. Shortly thereafter, another burnt orange car was spotted outside the Sandwich Shop after a man was found in the kitchen. At the Sandwich Shop, one of its employees also recorded most of the license plate number. The car Naylor was driving when he was arrested matched the description of the car at the Farm Fresh Milk Store, the Sandwich Shop, and Missy’s Family Restaurant. Further, Schott testified that, based upon all of the surveillance videos and Naylor’s car, each car depicted was a 2001 Pontiac Grand Prix, similar in color, with custom stripes and rocker moldings and damage to the rear driver’s side quarter panel.
The Farm Fresh Milk Store employee and Officer Harrison testified that the appearance of the person in the Farm Fresh Milk Store surveillance video wore a baseball cap. Officer Harrison further testified that his appearance was “consistent” with the appearance of the man in the surveillance video at Missy’s Family Restaurant. A baseball cap, which was similar in appearance to the one in the surveillance videos, was found in Naylor’s car. Naylor admitted the baseball cap belonged to him.
Further, Cook heard the man in the kitchen speak with a distinctive voice. After listening to a voice recording of Naylor for the first time at trial, Cook was able to identify Naylor as the same man who was in the kitchen. Detective Warren also testified Naylor’s voice was “gravelly,” “scratchy,” and “deep.”
Cumulatively, the Illinois incidents coupled with the surveillance video at Missy’s Family Restaurant tended to establish Naylor’s identity. Any additional facts presented at trial were merely to explain to the jury the circumstance of Naylor’s identification. “It would be confusing to the jury to present the identification testimony ... without presenting the circumstances of the identification.” State v. Jackson,
Finally, the jury was instructed that if it believed Naylor was involved in any offense other than the one for which he was on trial, it could only consider that evidence “on the issue of identification, motive, intent, absence of mistake or accident or presence of a common scheme or plan.” The instruction also indicated that the jury could not consider that evidence for any other purpose. A "jury is presumed to know and follow the instructions.” State v. Madison,
Conclusion
The circuit court’s judgment is affirmed.
Notes
. All further statutory references are to RSMo 2000.