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State v. Brown

Court of Appeals of Missouri, Eastern District, First Division

November 18, 2014

STATE OF MISSOURI, Respondent,
v.
DEMETRIUS A. BROWN, Appellant

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of St. Charles County. Honorable Jon A. Cunningham.

Samuel Buffaloe, Columbia, MO, for appellant.

Chris Koster, Atty. Gen., Andrew C. Hooper, Asst. Atty. Gen., Jefferson City, MO, for respondent.

LAWRENCE E. MOONEY, JUDGE. GLENN A. NORTON, J., concurs. CLIFFORD H. AHRENS, P.J., concurring in part and dissenting in part in separate opinion.

OPINION

LAWRENCE E. MOONEY, JUDGE.

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The defendant, Demetrius A. Brown, appeals the judgment and sentence entered by the Circuit Court of St. Charles County following his conviction by a jury of two counts of second-degree burglary, in violation

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of section 569.170 RSMo. (2000), and two counts of class-C felony stealing, in violation of section 570.030.3 RSMo. (Supp. 2010).[1] The trial court sentenced the defendant as a prior and persistent offender to a total of twenty years of imprisonment.

Because the State failed to make a submissible case on count six--second-degree burglary of the sacristy of St. Peter Catholic Church--we reverse the defendant's conviction on that count. Because the State failed to prove a value of $500 or more at the time of the offense for the television that the State charged the defendant with stealing in count seven, we amend the defendant's conviction on count seven to the lesser-included offense of class-A misdemeanor stealing pursuant to section 570.030.8 RSMo. (Supp. 2010) and remand this count to the trial court for re-sentencing.

We affirm the defendant's other two convictions: second-degree burglary of the rectory at St. Peter Catholic Church charged in count one, and stealing a credit card from St. Peter's charged in count two.

Facts

Viewed in the light most favorable to the judgment, the facts are as follows. On June 11th, 2011, Don Moxley, the business manager for St. Peter Catholic Church in St. Charles, Missouri, reported to police that a television was missing from the chapel.[2] The television was a 32-inch Samsung, model number LN32A450, donated by a parishioner who had bought it in June 2008 for $749.99. One day before Mr. Moxley reported the television stolen, the defendant sold that same Samsung television to a pawn shop in St. Louis for $140.

On Saturday, June 18th, 2011, at approximately 9:00 a.m., Jennifer Lanteigne, a teacher at St. Peter School and a member of St. Peter Catholic Church, was praying in the chapel at the church. She heard someone enter and pace back and forth, and then she heard a loud rattling noise. She turned and saw the defendant in the hall outside the chapel, near the prayer candles and the candle-donation box. She did not recognize the defendant, and became concerned when she heard further pacing and rattling. She deliberately jangled her keys to indicate that she was leaving, and she left through the chapel's front door. Ms. Lanteigne saw a white car occupied by a younger man parked next to her green minivan. She noticed that the white car had damage to the side rear, and she did not recall seeing a license plate. Ms. Lanteigne saw the defendant walk out the front door of the main church, and get into the white car.

Ms. Lanteigne drove next door to St. Peter's rectory, which housed the priests' residence and the church business offices, and told Father Fred Meyer what she had seen. Ms. Lanteigne and Father Meyer walked to the chapel hallway where Ms. Lanteigne had seen the defendant. They found that the wooden donation box for the prayer candles had been forced open, and contained no money.

Father Meyer returned to the rectory while Ms. Lanteigne left St. Peter's church complex. As she drove by St. Peter's school, however, Ms. Lanteigne saw the same white car in the school parking lot located directly behind the rectory. She saw the defendant carrying a black case and walking quickly from the rectory toward the white car. Ms. Lanteigne immediately

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returned to the rectory to check on the elderly Father Meyer. Father Meyer contacted Mr. Moxley, who called the police. Father Meyer discovered that a heavy outside door at the back of the rectory, normally kept locked and used only by the housekeeper, was partially open. Church personnel discovered that a laptop computer, a laptop case, a camera, cash, and a Lowe's credit card had been taken from the rectory, and that, in addition to the candle-donation box having been emptied, a set of keys for both the church and the rectory were missing from the sacristy.

On June 21st, 2011, Carol Breckle, the director of religious education at St. Robert Bellarmine Catholic Church in St. Charles, was at the church when she received a call from the parish secretary saying that a man sought to enter the building, and that he matched the description of the man who had broken into St. Peter's. Ms. Breckle saw the defendant try to open a set of locked side doors. He then got into a white car with body damage and no license plates and drove to another part of the building. Ms. Breckle went to warn the maintenance man, Dave, what was happening, and heard the lid closing on the donation box in the hallway for the St. Vincent DePaul Society. She investigated, and saw the defendant standing near the donation box. The defendant told Ms. Breckle that Dave was right outside and had let him in, and the defendant then went into the church. Ms. Breckle followed the defendant, and watched him go quickly and directly to the front of the church and look in the candle-donation box. The defendant then went around the tabernacle, where the church keeps the communion host, and Ms. Breckle at that point insisted that the defendant leave immediately through the nearest doors.

On July 2nd, 2011, Officer Kenneth Mayer of the St. Charles Police Department noticed a white Ford Taurus with extensive body damage on its left rear side that matched the description of a car sought by police. Two men were inside the car. Officer Mayer followed the car, and pulled the car over when it entered a gas station. Officer Mayer spoke with the car's driver, the defendant, and arrested him. In the white Taurus, police found among other items a white dress shirt and keys belonging to St. Peter's, marked " rectory" and " church basement."

Detective Sergeant David Kleinschmidt of the St. Charles Police Department investigated the burglary at St. Peter's. During his investigation, Detective Kleinschmidt obtained surveillance video from St. Robert's, which showed the white car that Ms. Breckle saw along with footage of the defendant. Detective Kleinschmidt interviewed the defendant on July 2nd, 2011. At the time of his interview, the defendant wore a white dress shirt with the sleeves unbuttoned. The defendant told Detective Kleinschmidt that he was from St. Louis, and often went to a Baptist church. The defendant explained that sometimes, however, he would go to a church and put money in the donation box for prayer candles because he had recently received bad medical news. He said that it had been a month or so since he had been to St. Charles, and that he had been to two Catholic churches there. Detective Kleinschmidt told the defendant that a woman had seen him at St. Peter's. The defendant acknowledged that he had seen the woman, that she saw him leave, that she herself left, and that she drove a green van. The defendant stated that he did not steal any candles or anything. He finally admitted that he had been inside St. Peter's on June 18th, 2011 while his passenger stayed in the car. The defendant confirmed that he was in the surveillance

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footage from St. Robert's and that he was driving the white car.

Detective Kleinschmidt checked an internet database containing participating pawn-shop transactions nationwide. He determined that only one Samsung television of the same model as that reported stolen from St. Peter's had been sold to a pawn shop in the metropolitan St. Louis area between June 9th and June 11th, 2011. The defendant was listed as the person who sold the television involved in that transaction. Detective Kleinschmidt noted that the signature on the pawn ticket looked similar to the defendant's signature on his Miranda waiver form. Detective Kleinschmidt also obtained surveillance footage from two of the three Lowe's stores where the credit card stolen from St. Peter's was used. Detective Kleinschmidt identified the defendant as the man in the videos wearing a white dress shirt with the sleeves unbuttoned and using the stolen credit card.

The State ultimately charged the defendant by substitute information with two counts of burglary in the second degree--count one for St. Peter's rectory and count six for St. Peter's sacristy; three counts of felony stealing--count two for the credit card, count three for the laptop computer, and count seven for the television; and two counts of misdemeanor stealing--count four for the camera and count five for the cash. All counts related to incidents occuring at St. Peter Catholic Church, and charged the defendant as " acting in concert with another." The State did not charge the defendant with any offense related to St. Robert's.

The defendant filed a motion in limine seeking to exclude, inter alia, evidence that he entered St. Robert's and approached the church's donation box. The trial court sustained the motion in part, and denied it in part. The court allowed the State to adduce evidence that the defendant allegedly tried to break into the donation box at St. Robert's on June 21st, 2011.

A number of witnesses testified at trial, including Ms. Breckle from St. Robert's, and the State entered numerous exhibits into evidence. Among these exhibits were surveillance videos from St. Robert's and from Lowe's showing footage of the defendant. At trial Detective Kleinschmidt testified that the man seen on the Lowe's videos was the defendant. The defendant objected to this testimony. In its closing argument, the State told the jury, " Then about a week later he's pulling the same stunt at St. Robert. . . . He goes at St. Peter's from the candle box to the sacristy to the rectory without stopping anywhere in between and at St. Robert he goes from the poor box to the candle donation box."

The jury convicted the defendant on count one (burglary of St. Peter's rectory), count two (stealing the credit card), count six (burglary of St. Peter's sacristy), and count seven (stealing the Samsung television). The jury acquitted the defendant on count four (stealing the camera) and count five (stealing cash from St. Peter's). The trial court declared a mistrial on count three (stealing the laptop) when the jury could not reach a verdict. The trial court sentenced the defendant as a prior and persistent offender to terms of imprisonment of 15 years each for counts one, two, and six, all to run concurrently, and to a consecutive term of five years for count seven. The defendant appeals.

Discussion

In five points on appeal, the defendant challenges the sufficiency of the evidence to support his conviction for second-degree burglary of St. Peter's sacristy; the sufficiency of the evidence to support his conviction for stealing property (the television)

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valued at $500 or more; submission of the verdict-directing instruction for stealing property valued at $500 or more (the television); the trial court's admission of evidence of conduct at St. Robert's with which the defendant was not charged; and the trial court's admission of Detective Kleinschmidt's testimony identifying the defendant on the Lowe's surveillance videotape.

Sufficiency of the Evidence to Support the Defendant's Conviction For Burglary of the St. Peter Catholic Church Sacristy

The defendant claims the trial court erred in overruling his motion for judgment of acquittal and in entering judgment and sentence on count six--second-degree burglary of St. Peter's sacristy--because the evidence was not sufficient to show that either the defendant or an accomplice knowingly entered the church sacristy unlawfully. Specifically, he argues that the State failed to prove any reason the defendant or an accomplice would have known that the sacristy of the church was not open to the public.

We review the denial of a motion for judgment of acquittal to determine if the State adduced sufficient evidence to make a submissible case. State v. Pullum, 281 S.W.3d 912, 915 (Mo. App. E.D. 2009). Our role is to determine whether sufficient evidence was produced at trial so that a reasonable person could conclude that the defendant was guilty. Id. " In determining whether the evidence is sufficient to support a conviction, we view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict, and we disregard all contradictory evidence and inferences." Id. We must consider the inferences favorable to the State unless the contrary inference is such that it would necessarily give rise to a reasonable doubt in the mind of a reasonable juror. State v. Grim, 854 S.W.2d 403, 413 (Mo. banc 1993). We may not supply missing evidence, or give the State the benefit of unreasonable, speculative, or forced inferences. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001).

A person commits the crime of second-degree burglary, a class-C felony " when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein." Section 569.170. With respect to his conduct or to attendant circumstances, a person acts knowingly or with knowledge when he is aware of his conduct or that those circumstances exist. Section 562.016.3.

[A] person " enters unlawfully or remains unlawfully" in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his purpose, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or by other authorized person. A license or privilege to enter or remain in a building which is only partly open to ...

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