State v. Naylor

• Decision Date: 21 June 2016
• Docket Number: No. ED103010,ED103010
• Citation: State v. Naylor, No. ED103010 (Mo. App. Jun 21, 2016)
• Parties: STATE OF MISSOURI, Respondent, v. ORLANDO NAYLOR, Appellant.
• Court: Missouri Court of Appeals

STATE OF MISSOURI, Respondent, v. ORLANDO NAYLOR, Appellant.

No. ED103010

Missouri Court of Appeals Eastern District DIVISION FOUR

June 21, 2016

Appeal from the Circuit Court of Ste. Genevieve County

Hon. Wendy Horn

Introduction

Appellant Orlando Naylor ("Naylor") appeals from the judgment of the trial court convicting Naylor as a prior and persistent offender of first-degree burglary, misdemeanor stealing, and driving with a revoked license in connection with the theft of cash located in the interior office of a restaurant. On appeal, Naylor contends that (1) the trial court erred in overruling his motion for judgment of acquittal for the charge of first-degree burglary because the State failed to present sufficient evidence from which a reasonable juror could have found that Naylor knowingly entered unlawfully into the office area of the restaurant; (2) the trial court erred in overruling his motion for judgment of acquittal for the charge of first-degree burglary because the State failed to present sufficient evidence that any other person was present in the office at the time he entered and took money; and (3) the trial court abused its discretion in allowing testimony regarding a different theft and an attempted theft that occurred on the day before the crimes with which Naylor was charged.

Because the door to the room which Naylor entered was clearly marked with a sign reading "office" and was located at the end of a hallway, the State presented sufficient evidence from which a rational juror could reasonably infer that Naylor knew the office was not open to the public, and thus, that he was aware his entry into the office was unlawful. Because the State presented no evidence that Giesler or anyone else was present in the "room"—specifically the office—that Naylor unlawfully entered, either at the time he entered the office, during the time he remained in the office, or at the time he fled therefrom, the State failed to present sufficient evidence to support Naylor's conviction for first-degree burglary. However, the record contains sufficient evidence from which a jury could have found each of the elements necessary to convict Naylor of second-degree burglary. Finally, because the circumstances of a prior theft and an attempted theft in which Naylor was involved tended to establish Naylor's identity as the man who committed the crime for which he was charged, the trial court did not abuse its discretion in admitting the evidence.

Accordingly, we affirm the judgment of the trial court with respect to Points One and Three and reverse the judgment of the trial court with respect to Point Two. We vacate Naylor's conviction for first-degree burglary, enter a conviction for second-degree burglary, and remand the case for re-sentencing.

Factual and Procedural History

Naylor was arrested and charged as a prior and persistent offender with one count of first-degree burglary (Count I), one count of stealing (Count II), and one count of driving with a revoked license (Count III). Count I charged that Naylor committed first-degree burglary "inthat on or about May 16, 2014, in the County of Ste. Genevieve, State of Missouri, the defendant knowingly [entered] unlawfully in a room in a building not open to the public, located at 17033 New Bremen Road and owned by Melissa Giesler, for the purpose of committing stealing therein, and while in such (sic) there was present in such building Melissa Giesler, a person who was not a participant in the crime." The case proceeded to a jury trial.

I. Pretrial Matters

Prior to trial, the State filed a "motion in limine regarding uncharged prior bad acts to establish motive, intent, absence of mistake, identity, and common scheme or plan, and complete and coherent picture." The State's motion in limine requested the trial court to allow evidence regarding a theft of cash from the Farm Fresh Store and an attempted theft from the Sandwich Shop, one day before Naylor allegedly burglarized Missy's Restaurant. Specifically, the motion alleged that on May 15, 2014, in Collinsville, Illinois, a man whose appearance is similar to that of Naylor was seen on video entering the Farm Fresh Store and taking a bag of money from the back office. The motion further alleged that shortly after the theft from the Farm Fresh Store, a person resembling Naylor, wearing the same clothes as the person from the Farm Fresh video and the person from the Missy's Restaurant video, entered the Sandwich Shop in Collinsville, Illinois. The man was confronted by employees before leaving in a car that resembled the car in the Farm Fresh video and the Missy's Restaurant video.

With respect to the issue of identity, the State argued that because the evidence from the Farm Fresh Store and Sandwich Shop incidents provided clearer descriptions of the vehicle and clothing of the suspect, and because the suspect in the Missy's Restaurant surveillance video was wearing the same clothes as the man seen in the Collinsville incidents, had a similar distinct voice, and was seen driving a similar car, the evidence was admissible to prove identity. Thetrial court ruled that, while the issue was a "close call," testimony regarding the two incidents in Illinois would be admitted into evidence. In particular, the trial court was persuaded that the evidence should be admissible as identity evidence.

II. Trial

Viewed in the light most favorable to the jury's verdict, the following evidence was adduced at trial. Giesler, the owner of Missy's Restaurant, arrived at the restaurant at 6:00 A.M. on May 16, 2014. Giesler left her purse, which contained $165, on a desk in the office area of the restaurant while she worked. Giesler testified that the office is not open to the general public. Testimony and photographic exhibits presented at trial revealed the following facts about the location and characteristics of the office. The office door had a sign on it that read "office." A short hallway led from the public restaurant area to the office. The hallway was lined with lockers on one side and an area for hanging clothes and coats on the other. The office was inaccessible from outside the building. The building featured a "side door" that led directly outside. However, this side door was kept locked with a deadbolt from the inside, such that it could only be unlocked from the inside. The side door did not lead directly into the office, but rather, opened to a "secondary office"¹ which in turn led to the office where Giesler's purse was kept.

Giesler testified that she was present in the restaurant all day on May 16, 2014, from 6:00 A.M. to 9:00 P.M. When Giesler went to the office to collect her purse at 9:00 P.M., she discovered that the money was gone. Giesler also discovered that the side door, which was always kept locked, was unlocked. Giesler contacted Mitzi Aufdenberg ("Aufdenberg"), themanager of a truck stop adjacent to Missy's Restaurant, and asked her to check the surveillance video from that day.

The truck stop surveillance video showed a man pulling his car into the truck stop, exiting, vanishing from the field of view, and later returning to the car. The surveillance video from outside Missy's Restaurant showed the same man exiting the restaurant through the side door. Both videos were admitted into evidence as State's Exhibits 15 and 16 and played for the jury. State's Exhibit 16 and State's Exhibit 17, still photographs taken from the surveillance video, showed that the man's car was orange with racing stripes.

On May 30, 2014, Officer Jerod Darnell ("Officer Darnell") pulled Naylor over for a traffic stop. Naylor was driving a 2001 Pontiac Grand Prix with a license plate of "PH5 U6Y." Officer Darnell's partner recognized Naylor's car as matching the description of the car captured by the surveillance video outside Missy's Restaurant on May 16, 2014. The officers called Detective Austin Clark ("Detective Clark"), who arrived at the scene shortly thereafter. Naylor was placed under arrest for driving while suspended and gave consent to the officers to search his car. Detective Clark searched Naylor's car and discovered $675 in cash and a baseball cap.

Detective Clark subsequently interviewed Naylor and showed him pictures from the surveillance footage at Missy's Restaurant. Naylor denied being the person in the surveillance video and maintained that he had nothing to do with the crime. Naylor acknowledged that the cap found in his car was his, and said that the $675 came from poker winnings and money given to him by his girlfriend.

Elsie McCartney ("McCartney") was the manager of the Farm Fresh Store in Collinsville. McCartney testified that she and another employee, Margaret Cooper ("Cooper"), were closing the store on May 15, 2014, when she noticed that the change bag was missing. McCartneytestified that the change bag was usually kept in a file cabinet in the back office of the store, an area not open to the public and marked by a sign reading "employees only." McCartney explained that once she noticed the change bag was missing, she and Cooper checked the store's security cameras. McCartney testified that the security camera showed a car backed up to the side of the building, and confirmed that State's Exhibit 7 was a still photo of the car. McCartney further testified that the security footage showed the driver of the car, a man, exit the vehicle and enter the building. McCartney stated that the security cameras inside the store showed the man entering the office, searching a desk and a file cabinet, removing the change bag, and exiting the store.

McCartney testified that after viewing the surveillance videos, she called the Collinsville Police Department. McCartney stated that she showed the responding officer the surveillance videos but was unable to make copies of the videos. McCartney stated that the officer used his phone to take photographs from stills of the videos, and she confirmed that those photographs were...