State v. Esposito, 19567

• Decision Date: 30 May 1995
• Docket Number: No. 19567,19567
• Citation: 899 S.W.2d 904
• Parties: STATE of Missouri, Respondent, v. Vincent ESPOSITO, Appellant.
• Court: Missouri Court of Appeals

Page 904

899 S.W.2d 904

STATE of Missouri, Respondent, v. Vincent ESPOSITO, Appellant.

No. 19567.

Missouri Court of Appeals,

Southern District,

Division Two.

May 30, 1995.

Barbara Hoppe, Office of the State Public Defender, Columbia, for appellant.

Jeremiah (Jay) W. Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for respondent.

PREWITT, Judge.

Following jury trial, Defendant was convicted of four counts of burglary and two counts of stealing. The court sentenced Defendant to five years' imprisonment on each count. Defendant appeals, presenting three points relied on.

Defendant's first point asserts that there was insufficient evidence to support the convictions. In reviewing such a contention, all facts and reasonable inferences should be considered in the light most favorable to the verdict. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). Contrary evidence and inferences are disregarded. Id.

Early in the morning of June 10, 1993, four businesses in close proximity along Highway 54 in Osage Beach were burglarized. Cash was taken from a restaurant, a motel, and a hair salon. Another restaurant reported tee shirts missing. At two locations shoeprints found by officers were casted and collected; a partial muddy shoeprint from the back-door area of the salon, and a complete shoeprint found in dirt outside Domenico's Italian Restaurant. Entry doors of the two restaurants were kicked in and a shoeprint was visible on the exterior of each door.

One month later, while speaking with Defendant in her office on an unrelated matter, Detective Kathy Needham, assigned to the investigation of these burglaries, noticed that the pattern on the sole of Defendant's shoe was similar to the pattern of the footprint. Upon her request, Defendant surrendered black Nike Air Max athletic shoes, to Detective Needham. He told her that the shoes belonged to a friend, Stanley Lenn. ¹

Detective Needham submitted the shoes and the two plaster-casted shoeprints to the Highway Patrol's forensic science laboratory supervisor, Thomas Buel, for his examination. Buel testified that, in addition to having similar class characteristics, certain individualizing characteristics possessed by both shoe and print indicated to him that one of the shoes Defendant gave to Needham was the shoe which made the print found outside the door of the restaurant. The other partial print cast possessed certain similar class characteristics, but Buel could not positively say the print was made from one of the shoes surrendered by Defendant.

Detective Needham testified that during an interview with Stanley Lenn, on July 20, 1993, Lenn said Defendant had purchased black Fila shoes and traded them for his black Nike Air Max shoes. Lenn told her that this occurred over the Memorial Day weekend, and that he had not worn the Nikes since that time. ²

A former roommate of Defendant, Daniel Marshke, testified that Defendant had awakened him early one morning, asking to stay with him. He recalled that Defendant was dressed in dark clothing and had pulled from his pocket a "sum of money", saying he had gone "midnight shopping at three different places down 54." Marshke could not remember the date of this occurrence. There were no other multiple burglaries along Highway 54 around that time period.

Around the date of the burglaries, Defendant was staying with an aunt, Billie Jo Geers, in Lakeview. Geers testified that on June 9, 1993, Defendant had come home from fishing with her son between 11:00 p.m. and midnight, wearing shorts and a white tee shirt, and tracking in mud over her carpet. He got something to eat, and "laid down in front of the T.V. and passed out." She cleaned mud off the shoes he had been wearing, "black tennies" with a name that "started with an 'F' ". She went to bed about 1:30 a.m., and got up around 6:30 a.m. Defendant was "still passed out in front of the T.V. with the T.V. on."

"The probative worth for identification of the accused of evidence of the correspondence between footprints at the scene of the crime and shoes worn by the accused is generally recognized." State v. McGlathery, 412 S.W.2d 445, 448 (Mo.1967). See also State v. Dees, 639 S.W.2d 149, 152-154 (Mo.App.1982); State v. Cullen, 591 S.W.2d 49, 52 (Mo.App.1979). The footprint evidence, Defendant's statements to Marshke, and the money he showed Marshke was sufficient for the jury to find beyond a reasonable doubt that Defendant committed the offenses. The jury did not have to believe Geers. Point I is denied.

Defendant's second point states the trial court erred in denying his "Motion to Sever the Individual Burglary Offenses". He contends that this prevented the jury from considering the evidence for each offense separately, resulting in prejudice to him. He asserts that the jury was thus allowed to consider the footprints taken at some of the burglary sites and apply it to all of the counts. There is no contention that joinder under Rule 23.05 was improper. That rule is set forth marginally. ³

Whether there should be severance for trial of multiple offenses is governed by Rule 24.07. It provides:

When a defendant is charged with more than one offense in the same indictment or information, the offenses shall be tried jointly unless the court orders an offense to be tried separately. An offense shall be ordered to be tried separately only if:

(a) A party files a written motion requesting a separate trial of the offense;

(b) A party makes a particularized showing of substantial prejudice if the offense is not tried separately; and

(c) The court finds the existence of a bias or discrimination against the party that requires a separate trial of the offense.

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