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State v. Allen

Court of Appeals of Missouri, Eastern District, Division Four

January 17, 2017

STATE OF MISSOURI, Respondent,
v.
MICHAEL ALLEN, Appellant.

         Appeal from the Circuit Court of the City of St. Louis Honorable Michael F. Stelzer

          KURT S. ODENWALD, Judge.

         Introduction

         Michael Allen ("Allen") was convicted on two counts of second-degree burglary following a bench trial. Allen asserts on appeal that the trial court abused its discretion in granting the State's request for a continuance mid-trial and that there was insufficient evidence to support one of his second-degree-burglary convictions. Because the trial court did not abuse its discretion in continuing the bench trial for twelve days in order to hear evidence from additional witnesses and because the State presented sufficient evidence for the trial court to infer that Allen intended to steal when he entered the property at issue, we affirm the judgment of the trial court.

         Factual and Procedural History

         The State charged Allen with four counts of second-degree burglary and three counts of stealing a firearm. The case proceeded to a bench trial, where the trial court found Allen guilty of two counts of second-degree burglary and acquitted him of all other charges. Specifically, the trial court found Allen guilty for burglaries committed at 5572 Natural Bridge Road[1] ("the Natural Bridge Burglary") and 2423 North Grand Boulevard ("the North Grand Burglary").

         Before the bench trial began on September 16, 2015, the State informed the trial court that not all of the necessary witnesses were available to testify. The State requested that the trial court hold a partial hearing on September 16, 2015, and conclude the bench trial at a later date. Over Allen's objection, the trial court stated that it was inclined to permit a partial hearing for the witnesses then present and later allow additional witnesses to testify. Allen proceeded to waive his right to a jury trial.

         Regarding the Natural Bridge Burglary, Dominic McNair ("McNair") testified that he operated a daycare located at 5572 Natural Bridge Road. McNair received a telephone call from the alarm company on May 14, 2012, informing him of a possible burglary at the daycare. McNair met with police officers at the daycare, where he discovered that a window was broken and that a stone was lying inside the daycare near the broken window. McNair testified that a television was missing. On the mounting strip where the television had been attached to the wall, blood was found and collected.

         Regarding the North Grand Burglary, Reverend Timothy Cook ("Reverend Cook") testified that his parish owned the building at 2423 North Grand Boulevard. Reverend Cook testified that the building was known as the VCR Building because the parish rented it to an organization called Vision for Children at Risk. Reverend Cook recalled hearing a burglar alarm sound in the middle of the night on September 9, 2012. Reverend Cook received a call from the alarm company informing him of a possible burglary at the VCR Building. Reverend Cook remembered arriving at the VCR Building with police officers, observing a broken window, seeing a brick lying inside, and finding a DVD player missing from the second shelf of a television stand as wires were hanging in the air. Reverend Cook asserted that the wires hanging in the air on the television stand were of a kind normally attached to a DVD player and that someone appeared to have manipulated the wiring. Reverend Cook stated that he did not give Allen permission to enter premises, break the window, or manipulate the wiring to the electronic devices. On cross-examination, Reverend Cook testified that he did not remember seeing the DVD player on the television stand during his last visit to the VCR Building before the burglary and that he knew that a DVD player was stolen because someone told him that a DVD player was missing. The State's evidence also showed that blood was found and collected near the broken window and at several locations inside the VCR Building, including near the television stand.

         At the end of the first day of the bench trial, Allen reasserted his objection to the State's request for a continuance. Allen maintained that he was arraigned on November 6, 2014, and that he filed a request for a speedy trial on July 17, 2015. Allen noted that the State previously had made multiple motions for continuances. Allen contended that the State did not notify him of the unavailability of witnesses until the morning of trial. Allen then moved for judgment of acquittal on all counts because Detective Treis had yet to testify that a buccal swab was taken from Allen, linking Allen's DNA to the blood found at the respective crime scenes.

         The State countered that ail witnesses were supposed to be present for the bench trial. The State thought that Detective Treis, who was on vacation, was going to make a special appearance for the bench trial. The State was unsure if Detective Treis was still in town or out of town. After the trial court informed the State that if Detective Treis was in town the State must produce him the following day, the State checked with one of its investigators off the record. The State then notified the trial court that Detective Treis was out of town.

         In reviewing the State's request for a continuance, the trial court employed a balancing test and expressly considered Allen's concerns. The trial court granted the State a continuance, concluding that the length of the delay would be very short. The trial court also found that Allen would not be prejudiced by a brief continuance in the trial. The trial court scheduled the second day of the bench trial for September 28, 2015-twelve days after the trial first commenced.

         The State and Allen both presented witnesses on September 28, 2015. Detective Treis testified that a buccal swab was taken from Allen in his presence. The DNA from the buccal swab matched the DNA from the blood found at the crime scenes, linking Allen to the Natural Bridge Burglary and the North Grand Burglary. In Allen's offer of proof, Detective Treis testified that he was aware that the bench trial was scheduled for September 16, 2015, but that he was on vacation. Detective Treis was unsure if he was in the City of St. Louis or if he remained in Jefferson County on September 16, 2015.

         At the conclusion of the bench trial, Allen moved for a judgment of acquittal as to the charges. The trial court found Allen guilty of two counts of second-degree burglary, one for each the Natural Bridge Burglary and the North Grand Burglary, but acquitted him of all other charges. The trial court then sentenced Allen to five years in prison on each of the ...


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