Court of Appeals of Missouri, Eastern District, Fifth Division
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[Copyrighted Material Omitted]
Appeal from the Circuit Court of Lincoln County. Honorable Chris K. Mennemeyer.
FOR APPELLANT: Lee R. Elliott, Troy, Missouri.
FOR RESPONDENT: Gabriel E. Harris, Jefferson City, Missouri.
Lisa S. Van Amburg, Judge. Angela T. Quigless, C.J. and Kurt S. Odenwald, J. Concur.
Lisa S. Van Amburg, Judge
Defendant Daniel Hastings was convicted by jury in the Circuit Court of Lincoln County of one count of Burglary in the First Degree, section 569.160, R.S.Mo. (2000), one count of Tampering with a Motor Vehicle in the First Degree, section 569.080, R.S.Mo. (Cum. Supp. 2007), two counts of Stealing, section 570.030, R.S.Mo. (Cum. Supp. 2007), and one count of Identity Theft, section 570.223, R.S.Mo. (Cum. Supp. 2007). On appeal, Hastings argues that the trial court erred by: (1) failing to suppress evidence of his possession of identification documents belonging to victim K.R, because police obtained this evidence after a warrantless entry of his home that violated the Fourth Amendment to the United States Constitution; (2) permitting the State to refresh a witness's memory with a deposition taken in a previous case, because the deposition was taken outside the Hastings's presence; (3) failing to provide the jury with an " acting in concert" instruction, because " acting in concert" was an element of the crimes with which he was charged; and (4) demonstrating an overt bias against him. Hastings also contends that there was insufficient evidence to support his conviction for (1) burglarizing J.R.'s home, (2) stealing prescription sunglasses and $300 in cash from J.R.'s purse, (3) stealing J.R.'s identification documents, and (4) tampering with victim S.W.'s motor vehicle. We reverse the trial court's judgment, and remand for a new trial.
As our ruling on Hastings's first point regarding warrantless entry by police into his home is dispositive of this appeal, we recount the facts of this case primarily as they relate to that point. On May 30, 2011, Illinois State Trooper Paul Moak received an anonymous tip that someone by the name of either Daniel or Dennis was attempting to sell a 2010 Hyundai Elantra for $2000. The tipster believed the car may have been stolen, and stated that it was located near a specific address in West Frankfort, Illinois.
Trooper Moak drove by the address four or five times before eventually finding the car parked in the driveway of a house across the street from the address provided by the tipster. He checked the license plate number, which revealed that the car had been stolen in Troy, Missouri. Trooper Moak called for backup, and West Frankfort municipal police officers Stacey Eaton and Shawn Tallutto arrived at the scene.
Without waiting to obtain a warrant, Trooper Moak and Officer Eaton approached the door of the house, while Officer Tallutto stayed in the driveway with the car. Officer Eaton knocked on the door of the residence and Hastings's girlfriend, Tina Spani, answered. The officers asked Spani if they could speak to " a male subject at the residence" regarding the vehicle that was parked in the driveway. While the officers were speaking with Spani on the front porch, a man, later identified as Hastings, walked from the interior of the home toward the front door, saw the police officers, and then " briskly" turned around and walked back to the interior of the residence. About the ensuing events, Trooper Moak testified at the suppression hearing as follows:
Q. And what did you ...