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Date: 03-16-2017

Case Style:

State of Missouri v. Orlando M. Naylor

Case Number: SC995847

Judge:

Court: SUPREME COURT OF MISSOURI

Plaintiff's Attorney:

Dora Fichter

Defendant's Attorney:

Casey A. Taylor of the public defender’s office

Description:

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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
3

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
4

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.”
5

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 article
V, section 10, of the Missouri Constitution.
First-degree burglary
Naylor claims there was insufficient evidence presented at trial to convict him of
first-degree burglary. Naylor asserts there was insufficient evidence presented from
which the jury could have found beyond a reasonable doubt that he knowingly entered
unlawfully into an area of Missy’s Family Restaurant and that another person was present
in the structure.
To determine whether the evidence presented was sufficient to support a
conviction and to withstand a motion for judgment of acquittal, this Court does not weigh
the evidence but, rather, “accept[s] as true all evidence tending to prove guilt together
with all reasonable inferences that support the verdict, and ignore[s] all contrary evidence
and inferences.” State v. Holmes, 399 S.W.3d 809, 812 (Mo. banc 2013) (quoting State
v. Latall, 271 S.W.3d 561, 566 (Mo. banc 2008)). “This Court’s review is limited to
determining whether there was sufficient evidence from which a reasonable juror might
have found the defendant guilty beyond a reasonable doubt.” State v. Letica, 356 S.W.3d
6

157, 166 (Mo. banc 2011). “This is not an assessment of whether this Court believes that
the evidence at trial established guilt beyond a reasonable doubt but rather a question of
whether, in light of the evidence most favorable to the State, any rational fact-finder
‘could have found the essential elements of the crime beyond a reasonable doubt.’” State
v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011) (quoting State v. Bateman, 318 S.W.3d
681, 687 (Mo. banc 2010)). “In reviewing the sufficiency of the evidence supporting a
criminal conviction, an appellate court ‘does not act as a ‘super juror’ with veto powers’
but ‘gives great deference to the trier of fact.’” State v. Jones, 479 S.W.3d 100, 105 (Mo.
banc 2016) (quoting State v. Miller, 372 S.W.3d 455, 463 (Mo. banc 2012)).
The offense of first-degree burglary occurs when a person “knowingly enters
unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the
purpose of committing a crime therein.” Section 569.160.1. Additionally, one of the
following three circumstances exists: (1) the person is armed with a deadly weapon;
(2) the person causes or threatens immediate physical injury to any person who is not a
participant in the crime; or (3) another person, who is not a participant in the crime, is
present in the structure. Id.
Knowingly Entered Unlawfully
Naylor asserts there was insufficient evidence presented from which a juror could
conclude that he knowingly entered unlawfully into the office area of Missy’s Family
Restaurant. Naylor claims the state failed to demonstrate that he knew he was not
allowed to be in the office area because the sign on the door to the office only stated,
7

“Office,” and there was no indication that restaurant patrons were prohibited from
entering.
A person enters or remains unlawfully on a property “when he [or she] is not
licensed or privileged to do so.” Section 569.010(8). “A license or privilege to enter or
remain in a building which is only partly open to the public is not a license or privilege to
enter or remain in that part of the building which is not open to the public.” Id.
“Knowledge is typically inferred from circumstantial evidence because direct evidence is
rarely available.” State v. Hunt, 451 S.W.3d 251, 257 (Mo. banc 2014).
One indication that a defendant knowingly enters unlawfully is whether there is
signage, which would demonstrate the area is not open to the public. In State v. Norfolk,
745 S.W.2d 737, 738 (Mo. App. E.D. 1987), the defendant was found in a non-public
stock room at a department store. The stock room was located at the back of the
department, and the door to the room stated, “Authorized Personnel Only.” While the
defendant had a license or privilege to be in the department store, he did not have the
right to be in the non-public area of the stock room. There was sufficient evidence that
the stock room was not open to the public. Id.
Yet, signage indicating that an area is not open to the public does not need to be as
explicit as in Norfolk. In State v. Girardier, 484 S.W.3d 356, 360 (Mo. App. E.D. 2015),
the male defendant was convicted of first-degree trespass because he “knowingly
enter[ed] unlawfully or knowingly remain[ed] unlawfully” in a women’s restroom. The
evidence established that there were separate restroom facilities for men and women that
were marked clearly. Id. at 362. Because the defendant knowingly entered an area of the
8

building where he was not permitted to be, his status changed from an invitee to a
trespasser. Id.
Conversely, when there is no signage to demonstrate that an area of a public
building is not open to the public, it is possible that a person may not “knowingly enter
unlawfully.” In State v. Weide, 775 S.W.2d 255, 256 (Mo. App. W.D. 1989), the
defendant entered a restaurant in a manner that was loud, profane, obnoxious, and
threatening. The restaurant manager asked the defendant to leave, but when the
defendant refused, the restaurant manager stated he would call the police. Id. The
defendant, still shouting threats and profanity, chased the restaurant manager into the
kitchen. Id. The court found that the state failed to prove that the defendant “knowingly
unlawfully entered” the restaurant’s kitchen because there was no visible sign indicating
that either the public was prohibited from entering or even what was behind the door. Id.
at 259. While many people understand that the public is not invited to enter a
restaurant’s kitchen, it “does not, however, remove the reasonable possibility that one
might find restrooms or another public portion of the restaurant behind the unmarked
door.” Id. at 258. Accordingly, the state failed to establish that the defendant knowingly
entered unlawfully. Id. at 259.
Similarly, in State v. Brown, 457 S.W.3d 772, 780 (Mo. App. E.D. 2014), there
was insufficient evidence that the defendant knowingly entered unlawfully into the
sacristy of a Catholic church. There was evidence explaining that the sacristy is not open
to the public generally but is open to those participating in the church service and to any
person wishing to speak with a priest or participant. Id. The two entry doors to the
9

sacristy were not locked, and the interior door leading to the altar was open. Id. Further,
there was no signage “that would inform a person that the door led to a private area rather
than to a public area.” Id. at 781. Accordingly, there was insufficient evidence to
conclude that the defendant knowingly entered unlawfully. Id.
Whether a defendant knowingly enters unlawfully can depend upon the
defendant’s conduct and whether the defendant attempts to conceal his or her activity. A
defendant’s conduct “relevant to show a consciousness of guilt or a desire to conceal the
offense [is] admissible because [it] tend[s] to establish the defendant’s guilt of the
charged crime.” State v. Barton, 998 S.W.2d 19, 28 (Mo. banc 1999).
In State v. Oropeza, 735 S.W.2d 2, 5 (Mo. App. W.D. 1987), the defendant
asserted there was insufficient evidence to find he knowingly entered unlawfully to
commit first-degree burglary. The warehouse door through which the defendant entered
was used by employees and deliverymen; there was no evidence that it was an entrance
for the general public. Id. However, once inside the warehouse, the defendant snuck up
on the victim and crouched between chairs to conceal his presence. Id. The defendant’s
actions “were not indicative of someone who entered for lawful purposes.” Id.; see also
Girardier, 484 S.W.3d at 362 (finding the defendant’s attempt to conceal his presence in
the women’s restroom by speaking in a female tone of voice demonstrated his knowledge
that he was not supposed to be there).
In this case, it is clear that Naylor knowingly entered unlawfully into the office of
Missy’s Family Restaurant. The only accessible entrance to the restaurant’s office was
from the public area of the restaurant. The door clearly was marked, “Office,” at the end
10

of a hallway leading away from the restaurant portion of the building, and past the area
for employees’ coats and lockers, indicating that it was a non-public area of the building.
An office is not an area of a restaurant that a reasonable person would expect to be open
to the public. Further, restaurant patrons typically park in the parking lot of that
establishment. Naylor did not park outside Missy’s Family Restaurant; instead, he
parked at a nearby gas station and then walked to Missy’s Family Restaurant. The
combination of the signage on the office door and Naylor’s furtive action of parking at a
different business indicate that he knowingly entered unlawfully into the office of
Missy’s Family Restaurant. On these facts, it was up to the jury to determine whether the
office was not an area of a restaurant that a reasonable person would expect to be open to
the public and whether Naylor knowingly entered it unlawfully. This was sufficient
evidence to convict Naylor of first-degree burglary.
Presence of Another in the Structure
Naylor asserts that there was insufficient evidence to demonstrate that another
person, not a participant in the crime, was present in the building to support his first
degree burglary conviction. Naylor claims the state failed to prove that anyone was
present in the office at the time of the crime. Naylor cites State v. Washington, 92
S.W.3d 205 (Mo. App. W.D. 2002), as being dispositive of this issue.
In Washington, the defendant was charged with first-degree burglary based upon
the allegation that he entered into a garage and removed tools while the victims were
present in the home. Id. at 207. The court found that the garage did not qualify as part of
the home’s inhabitable structure under section 569.010(2). Id. at 209. The garage the
11

defendant entered was attached to the home’s structure, but the garage and the home’s
living space were not connected by an interior door. Id. The court stated, “it appears that
one of the evident purposes behind the first-degree burglary statute is to increase the
penalty for someone who puts an innocent in harm’s way during a burglary.” Id.
Naylor extrapolates from Washington, arguing that because the office was in a
private portion of the restaurant building, it similarly was disconnected from the
restaurant’s public area, and he could not be guilty of first-degree burglary. Naylor’s
reasoning is faulty.
First, Washington makes a clear distinction between the garage’s structure and the
house’s living space, finding they were separate building structures. Washington, 92
S.W.3d at 209. Because there was no one else present in the garage who was not a
participant in the crime, the defendant did not meet the statutory requirements of first
degree burglary. Section 569.160.1(3).
Second, section 569.010(8) contemplates that one building may contain both
public and private areas. Thereby, Naylor’s assertion that a private office must be
completely separate from the public portions of the building is without merit.
Our courts have found consistently that when there is another person in the
building, as compared with the room as asserted by Naylor, there is sufficient evidence to
support a charge of first-degree burglary. See State v. Bowman, 311 S.W.3d 341, 347
(Mo. App. W.D. 2010) (concluding there was sufficient evidence to support a first-degree
burglary conviction in that common areas in an apartment building may constitute part of
the apartment); State v. Walker, 693 S.W.2d 237, 239 (Mo. App. S.D. 1985) (finding the
12

defendant committed first-degree burglary when he knowingly entered unlawfully to
commit a crime in a floral shop while there were other people present in the building’s
living quarters because the floral shop and the living quarters were “integral parts of the
same structure”).
In this case, Giesler was present in the building while Naylor entered the office of
the same building. The office for the restaurant and the restaurant were integral parts of
the same building. The office was located at the back of the building down a hallway.
Because the undisputed evidence established that Giesler was in the restaurant during the
incident, the state presented sufficient evidence that Naylor and another person, not
participating in the crime, were present in the same building as required by section
569.160.1(3). The circuit court did not err.
Evidence of Uncharged Misconduct
Naylor claims the circuit court abused its discretion in allowing testimony
regarding the theft and attempted theft in Illinois that occurred on May 15, 2014. Naylor
asserts that this evidence had no legitimate tendency to establish his guilt for the theft at
Missy’s Family Restaurant, was more prejudicial than probative, and was presented only
to demonstrate he had a propensity to commit burglaries of businesses.
Circuit courts retain wide discretion over issues of relevancy and admissibility of
evidence. State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016). “Evidence is
logically relevant if it tends to make the existence of a material fact more or less
probable.” State v. Collings, 450 S.W.3d 741, 756 (Mo. banc 2014) (quoting State v.
Anderson, 306 S.W.3d 529, 538 (Mo. banc 2010)). The circuit court’s “discretion will
13

not be disturbed unless it is clearly against the logic of the circumstances.” State v.
Primm, 347 S.W.3d 66, 70 (Mo. banc 2011) (quoting State v. Reed, 282 S.W.3d 835, 837
(Mo. banc 2009)). On direct appeal, “this Court reviews the trial court ‘for prejudice, not
mere error, and will reverse only if the error was so prejudicial that it deprived the
defendant of a fair trial.’” State v. Forrest, 183 S.W.3d 218, 223-24 (Mo. banc 2006)
(quoting State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999)).
Generally, “proof of the commission of separate and distinct crimes is not
admissible unless such proof has some legitimate tendency to directly establish the
defendant’s guilt of the charge for which he [or she] is on trial.” State v. Vorhees, 248
S.W.3d 585, 587 (Mo. banc 2008). “Evidence of uncharged misconduct is absolutely
inadmissible if offered solely for the purpose of showing that the defendant has a
propensity to commit the crime charged because this would violate the defendant’s right
to be tried only for the crimes charged under Article I, sections 17 and 18(a) of the
Missouri Constitution.” State v. Williams, 502 S.W.3d 90, 98 (Mo. App. E.D. 2016).
There are, however, “exceptions under which otherwise inadmissible evidence
may be admitted.” Primm, 347 S.W.3d at 70. This evidence may be admissible if it
tends to establish: “(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a
common scheme or plan embracing the commission of two or more crimes so related to
each other that proof of one tends to establish the other; or (5) the identity of the person
charged with commission of the crime on trial.” Id. Evidence “of uncharged crimes that
is part of the circumstances or the sequence of events surrounding the offense charged
may be admissible ‘to present a complete and coherent picture of the events that
14

transpired.’” State v. Schneider, 483 S.W.3d 495, 505 (Mo. App. E.D. 2016) (quoting
Primm, 347 S.W.3d at 70).
In this case, the surveillance video from Missy’s Family Restaurant only revealed
the general appearance of the suspect and his car. Naylor denied that he was the person
on the surveillance video at Missy’s Family Restaurant. Therefore, the suspect’s identity
was at issue.
The state admitted the evidence from the crimes in Illinois to establish Naylor as
the person who committed the theft at Missy’s Family Restaurant. The evidence from the
crimes in Illinois focused on the similarities between the suspect’s vehicle, appearance,
and voice on the day before the theft at Missy’s Family Restaurant.
Following a theft at the Farm Fresh Milk Store, the employees and Officer Warren
observed the suspect get into a burnt orange car with “purplish” stripes. Shortly
thereafter, another burnt orange car was spotted outside the Sandwich Shop after a man
was found in the kitchen. At the Sandwich Shop, one of its employees also recorded
most of the license plate number. The car Naylor was driving when he was arrested
matched the description of the car at the Farm Fresh Milk Store, the Sandwich Shop, and
Missy’s Family Restaurant. Further, Schott testified that, based upon all of the
surveillance videos and Naylor’s car, each car depicted was a 2001 Pontiac Grand Prix,
similar in color, with custom stripes and rocker moldings and damage to the rear driver’s
side quarter panel.
The Farm Fresh Milk Store employee and Officer Harrison testified that the
appearance of the person in the Farm Fresh Milk Store surveillance video wore a baseball
15

cap. Officer Harrison further testified that his appearance was “consistent” with the
appearance of the man in the surveillance video at Missy’s Family Restaurant. A
baseball cap, which was similar in appearance to the one in the surveillance videos, was
found in Naylor’s car. Naylor admitted the baseball cap belonged to him.
Further, Cook heard the man in the kitchen speak with a distinctive voice. After
listening to a voice recording of Naylor for the first time at trial, Cook was able to
identify Naylor as the same man who was in the kitchen. Detective Warren also testified
Naylor’s voice was “gravelly,” “scratchy,” and “deep.”
Cumulatively, the Illinois incidents coupled with the surveillance video at Missy’s
Family Restaurant tended to establish Naylor’s identity. Any additional facts presented
at trial were merely to explain to the jury the circumstance of Naylor’s identification. “It
would be confusing to the jury to present the identification testimony … without
presenting the circumstances of the identification.” State v. Jackson, 228 S.W.3d 603,
607 (Mo. App. W.D. 2007).
Finally, the jury was instructed that if it believed Naylor was involved in any
offense other than the one for which he was on trial, it could only consider that evidence
“on the issue of identification, motive, intent, absence of mistake or accident or presence
of a common scheme or plan.” The instruction also indicated that the jury could not
consider that evidence for any other purpose. A “jury is presumed to know and follow
the instructions.” State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999); see also State v.
Whitfield, 107 S.W.3d 253, 263 (Mo. banc 2003). The circuit court did not abuse its
discretion in admitting this evidence.

Outcome:

The circuit court’s judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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