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State v. Naylor

Supreme Court of Missouri, En Banc

March 14, 2017

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

         APPEAL FROM THE CIRCUIT COURT OF STE. GENEVIEVE COUNTY The Honorable Wendy Horn, Judge

          GEORGE W. DRAPER III, JUDGE.

         Following a jury trial, Orlando Naylor (hereinafter, "Naylor") was convicted of first-degree burglary, section 569.160, RSMo 2000, [1] misdemeanor stealing, section 570.030, and driving while revoked, section 302.321. The circuit court sentenced Naylor as a prior and persistent offender to fifteen years' imprisonment for burglary, one year imprisonment for stealing, and seven years' imprisonment for driving while revoked, to be served concurrently.

         Naylor raises three points on appeal. Naylor claims, in two separate points, there was insufficient evidence to support his conviction for first-degree burglary. Naylor further claims the circuit court abused its discretion by erroneously admitting testimony that demonstrated Naylor's propensity to engage in criminal activity. The circuit court committed no error; the judgment is affirmed.

         Factual and Procedural Background

         On May 15, 2014, two employees at the Farm Fresh Milk Store in Collinsville, Illinois, were closing the store for the day and noticed that the change bag was missing. The change bag usually was kept in the back office, which had a sign stating, "Employees only." The employees then viewed their security cameras. An outside security camera showed a car back up to the side of the building at about 2:30 p.m. The car's driver then entered the building. The inside security camera showed the driver went through the store and into the office. The driver searched the desk and filing cabinet where the change bag usually was kept. Upon discovering the change bag, the driver removed the money, went back into the store area, and made a purchase prior to leaving.

         After viewing the store's security camera video, the employees called the police. Detective Christopher Warren of the Collinsville Police Department investigated the theft. After viewing the security camera video, he identified the vehicle as a two-door Pontiac Grand Prix. The vehicle was a burnt orange color with "purplish" color stripes. The driver appeared to be wearing light tan pants and a baseball cap.

         Also on May 15, 2014, the cook (hereinafter, "Cook") at the Sandwich Shop in Collinsville, Illinois, observed a man in the kitchen at 3 p.m. Cook stated he was the only person allowed in the kitchen, and Cook asked the man what he was doing in the kitchen. The man asked if the Sandwich Shop was hiring. Cook informed him that they were not hiring. Cook noted that the man in the kitchen spoke with a low, raspy voice. The man then departed through the back door.

         Another employee from the Sandwich Shop followed the man out the back door and observed him getting into a burnt orange-colored vehicle. That employee recorded the first part of the license plate as "PH5" and noted that there was also a "6" on the license place.

         On May 16, 2014, Melissa Giesler (hereinafter, "Giesler") arrived to work in the early morning at Missy's Family Restaurant in Ozora, Missouri. Missy's Family Restaurant had an office that had an "Office" sign on the door. In front of the office, there was a place to hang clothes and some filing cabinets. The office was inaccessible from outside the building; one had to go through an interior hallway to enter it. The nearest exterior door to the office was a side door, which was kept locked and not used by the general public. That side door could only be unlocked from inside the building, and it was accessible through a storeroom that was off of the office.

         When Giesler arrived at work, she went into the office and placed her purse on a desk. After the restaurant closed that night, Geisler returned to the office and noticed that $165 was missing from her purse. Giesler also noticed that the side door was unlocked.

         Geisler contacted Mitzi Aufdenberg (hereinafter, "Aufdenberg"), the general manager of the nearby Ozora Truck Stop, inquiring as to whether she could look at the truck stop's surveillance tapes. Aufdenberg was able to view some of the surveillance video immediately, but she was unable to view the full surveillance video until the following day. The surveillance video showed a person parking a vehicle at the Ozora Truck Stop, getting out, and walking out of view. Shortly thereafter, the same person returned to the vehicle. Further, the person who exited Missy's Family Restaurant by the side door had the same appearance as the person who had parked at the Ozora Truck Stop.

         On May 30, 2014, Officer Jerod Darnell (hereinafter, "Officer Darnell") stopped a car for a traffic violation. The car was a 2001 Pontiac Grand Prix with the license plate "PH5 U6Y." Naylor was the driver. Officer Darnell's partner recognized Naylor's car as matching the description of the Missy's Family Restaurant surveillance video. Naylor was placed under arrest and consented to a vehicle search. Detective Austin Clark (hereinafter, "Detective Clark") was called and arrived on the scene. Detective Clark searched Naylor's car, discovering $675 in cash and a baseball cap.

         Subsequently, Detective Clark interviewed Naylor. Detective Clark showed Naylor pictures from the surveillance video at Missy's Family Restaurant, but Naylor denied being the person in the video and maintained he had nothing to do with the crime. Naylor acknowledged the baseball cap was his and explained the cash was from poker winnings and money given to him by his girlfriend.

         During their investigation, the police provided the surveillance video from the Farm Fresh Milk Store and Missy's Family Restaurant to Randy Lee Schott (hereinafter, "Schott"), a body shop manager. Schott examined the surveillance video. Schott was able to identify the car in both videos. He noted the car had the same damage and after-market additions. Schott determined that, based upon the car's specific characteristics, the cars depicted "appear similar."

         Naylor was charged as a prior and persistent offender with one count of first-degree burglary, one count of stealing, and one count of driving with a revoked license. The state charged that Naylor committed first-degree burglary on May 16, 2014, when he knowingly and unlawfully entered a room in Missy's Family Restaurant not open to the public.

         The jury found Naylor guilty of first-degree burglary, misdemeanor stealing, and driving while revoked. Naylor appealed. This Court has jurisdiction pursuant to ...


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