State of Missouri v. Brian Keith McBenge

In the Missouri Court of Appeals
Eastern District
DIVISION THREE

STATE OF MISSOURI, ) No. ED102147
)
Respondent, ) Appeal from the Circuit Court
) of St. Charles County
vs. ) 1111-CR05527-01
)
BRIAN KEITH MCBENGE, ) Honorable Nancy L. Schneider
)
Appellant. ) Filed: November 15, 2016

Brian Keith McBenge (“Defendant”) appeals the judgment entered upon a jury verdict

convicting him of first-degree murder for his alleged involvement in the 1984 killing of Eleonora

Knoernschild (“Victim”). We reverse and remand for a new trial.

I. BACKGROUND

Over two decades after Victim’s murder, a DNA analysis linked Defendant and his

brother Cecil McBenge 1 to evidence found on or near Victim’s property shortly after she was

killed. In separate underlying cases, Defendant and Cecil were each charged with and found

guilty by a jury of first-degree murder based on accomplice liability. 2 The State’s fourth

substitute information in lieu of indictment in Defendant’s case (“the information”) charging him

with first-degree murder alleged he acted in concert with another, and after deliberation,

1
Because Defendant and his brother Cecil share the same last name, we will refer to Cecil by his first name for
clarity and ease of reading.
2
Like Defendant, Cecil appealed the trial court’s judgment entered upon a jury verdict in his case convicting him of
first-degree murder, and some of Cecil’s points on appeal are similar to those raised by Defendant in this appeal.
Our Court’s opinion in State of Missouri v. Cecil Russell McBenge (No. ED102277), which reverses the judgment in
Cecil’s case and remands his cause for a new trial, is handed down the same day as this decision involving
Defendant.
knowingly caused the death of Victim on or between November 2nd and 4th of 1984 by beating

her. The information also gave Defendant notice that the State may submit an instruction for

second-degree felony murder to the jury based on the death of Victim as a result of Defendant’s

perpetration of the class B felony of first-degree burglary. Defendant’s jury trial was held on

August 11-16, 2014.

A. Evidence Presented at Defendant’s Trial

Viewed in the light most favorable to the verdict, the following evidence was presented at

Defendant’s trial. 3

1. Evidence Relating to Circumstances and Events Occurring in the Years
Prior to Victim’s Murder, including the 1980 Burglary of Victim’s Home

Defendant met Victim’s granddaughter (“Granddaughter”) in 1977 when they were both

teenagers and they eventually started dating. They dated for approximately eight months until

sometime in 1979. During the timeframe Defendant and Granddaughter were dating, they would

frequently go to Victim’s home, where Victim served them lunch and snacks. It was not unusual

for Defendant to get himself food out of the refrigerator, and Granddaughter testified she and

Defendant ate a lot of cheese while they were at Victim’s home. In addition, while Defendant

was dating Granddaughter, he became aware Victim kept extra cash in a Calumet baking powder

can (“the Calumet can”) located in the lower kitchen cabinets next to her refrigerator, because

Defendant saw Granddaughter steal money from the Calumet can when Victim was not looking.

Granddaughter admitted that although she did not have a specific recollection of Defendant’s

brother Cecil being present at Victim’s home, she had previously stated she thought Cecil would

have been present at the home at some point.

3
We note there is some evidence which was presented at Defendant’s trial that was not presented at Cecil’s trial and
vice versa.
2
 In March of 1980, Victim’s house was broken into while she was in the hospital. Police

classified the break-in of Victim’s home as a burglary (“the 1980 burglary”). 4 Around the time

the crime occurred, police officers lifted a latent fingerprint from the refrigerator door handle;

however, it went unidentified until 1986, when officers determined the fingerprint belonged to

Defendant. Nevertheless, Defendant was not a suspect in the 1980 burglary near the time it

occurred and he was never charged in connection with the crime. 5 In addition, Defendant’s

brother Cecil was not ever a suspect in or charged with the 1980 burglary.

Sometime after the 1980 burglary, Victim had bars installed on the basement windows of

her home. Victim also moved the Calumet can to her bedroom.

2. Evidence Relating to Circumstances Surrounding Victim’s 1984 Murder and
the Subsequent Police Investigation of the Crime

Victim’s murder occurred sometime between November 2nd and November 4th of 1984.

Around that same timeframe, Defendant and his brother Cecil lived in a home located about one

mile away and within walking distance of Victim’s home.

On November 2, 1984, before Victim’s body was discovered, Victim’s longtime

housekeeper cleaned Victim’s home, including the kitchen and kitchen floor. The housekeeper

testified Victim always kept her house tidy, with everything put in its proper place.

During the morning of November 4, 1984, Victim’s daughter called the police after she

went to Victim’s home to bring her the newspaper and noticed the glass window on the front

4
To avoid unnecessary repetition, a more detailed account of the evidence relating to the 1980 burglary will be set
out in Section II.C.1. of this opinion.
5
Presumably, Defendant was not charged with the 1980 burglary because he was not linked to the crime until 1986,
which would have been after the expiration of the three-year statute of limitations for prosecutions of class C
felonies. See sections 556.036.1, .2(1), and .4 RSMo 1978 (effective 1-1-79) (providing that a prosecution for any
felony other than murder or a class A felony must generally be commenced within three years of when the offense is
committed); sections 569.170.1 and .2 RSMo 1978 (effective 1-1-79) (second-degree burglary is a class C felony
which 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”).
3
door had been broken out and removed. Police responded to Victim’s home, searched the

premises, and conducted an investigation which revealed the following.

Police discovered a person or persons had gained entry to Victim’s home. It appeared

that whoever entered Victim’s home crawled through the space where the glass window on the

front door had been, because the front door was still locked. Victim’s bedroom, kitchen,

basement, and hallway had been ransacked, and several drawers, cabinets, and items were

opened throughout the house.

In the bedroom, Victim’s body was found lying on the floor underneath clothes and

papers which had been thrown around. Victim, who was elderly and weighed less than one-

hundred pounds, had blood and multiple bruises on her face, a split lip, and two broken ribs on

each side of her body caused by blunt force. Although part of the bedspread was looped around

Victim’s neck as if she might have been strangled, there was no evidence of ligature marks.

Victim’s cause of death was subsequently determined to be repeated blunt trauma.

Two kitchen-type knives were found on the bedroom floor next to a metal box, and the

Calumet can was found in Victim’s bedroom closet, which was open. In addition, the bottom

drawer of a bedroom dresser was pulled out almost all of the way, two other dresser drawers

were slightly pulled out, and the back of a clock on the top of the dresser had been opened up.

In the kitchen, four lower cabinets and two drawers next to Victim’s refrigerator were

open, but the top cabinets were closed. Various items were dumped out on the kitchen

countertop; the bread box, flour tin, and sugar tin were open; and a pair of gloves was found on

the kitchen floor. In addition, a white corner cabinet had top and bottom drawers which were

open. Finally, the refrigerator door and crisper drawer were open, and lying on the floor in front

of the refrigerator were a large plastic bag containing some grapefruit, a frozen meal, a

Tupperware container, a piece of cheese with a bite mark taken out of it, and an empty single-

serve cheese wrapper.
4
 In the basement, lock boxes had been dumped on the floor and personal papers were

spread across the floor. In the hallway, doors on two cabinets were opened and items were

dumped on the floor. In the dining room, one cabinet had a drawer which was open and another

cabinet had a door which was open. And in the living room, one cabinet had a door open and a

closet door was open.

Outside the house, near the back of Victim’s property by an alley, two nylon stockings

were found lying on the ground. Victim’s flashlight, which she always kept on top of shelves

built into the headboard of her bed, was found a little farther away across the alley. In addition,

two gloves, one blue and one maroon, were found in a bush in the front yard of a nearby house.

DNA testing was not performed until 2011 on, inter alia, the cheese wrapper found on

the floor of Victim’s kitchen, the two nylon stockings found by the alley near the back of

Victim’s property, and the blue glove found in the bush of a nearby home. The presence of DNA

found on the items was compared with Defendant’s and his brother Cecil’s DNA, who were both

Caucasians, as well as Victim’s DNA. Testing performed on the cheese wrapper revealed the

presence of single-source DNA on the wrapper which was consistent with Defendant’s DNA,

and the probability of someone else in the general Caucasian population having the same DNA

profile was 1 in 741,000. In addition, testing performed on the two nylon stockings revealed the

presence of only Victim’s DNA on one stocking but a mixture of her DNA and a male’s DNA on

the other stocking. The male DNA found on the stocking was consistent with Cecil’s DNA, and

the probability of someone else in the general Caucasian population having the same DNA

profile was 1 in 6.17 million. 6 Finally, testing performed on the blue glove revealed the presence

of DNA which was consistent with Victim’s DNA.

6
Unless otherwise indicated, all future references to a “stocking” are to the one found to have contained the
presence of a mixture of DNA consistent with Victim’s and Cecil’s DNA.
5
 Officers John Young and Leslie Simpson, 7 who were involved in investigating the 1984

break-in of Victim’s home and her murder, testified they did not know how many individuals

committed Victim’s murder. Officer Young testified it could have been as few as one person or

as many as five people.

B. Defendant’s Arguments Raised at Trial and Other Relevant Procedural Posture

Prior to trial, Defendant filed a motion to dismiss the crimes alleged in the information

for pre-indictment delay. At the close of the State’s evidence and at the close of all of the

evidence, Defendant filed motions for judgment of acquittal which asserted the State failed to

prove the elements of the crimes alleged in the information.

During Defendant’s jury trial, he objected to the admission of evidence relating to the

1980 burglary of Victim’s home, arguing it was improper evidence of a prior uncharged crime.

In addition, over Defendant’s continuing objection, Officer Simpson, who was present at the

crime scene after the 1980 burglary of Victim’s home and after the 1984 break-in of Victim’s

home and her murder, was allowed to testify about the details of the 1980 burglary and the

similarities between the two crimes.

Defendant also made an objection to admission of the cheese wrapper and the stocking,

arguing both items should be excluded from evidence because the State could not provide a

reasonable assurance that they were in substantially the same condition when tested as they were

when they were originally seized.

The trial court denied Defendant’s pre-trial motion to dismiss and his motions for

judgment of acquittal. The court also overruled Defendant’s objections to the admission of

7
Officers Young and Simpson, like many of the testifying officers, were retired by the time of Defendant’s trial. All
references to officers in this opinion include officers who were active and retired at the time of Defendant’s trial.
6
evidence relating to the 1980 burglary and his objections to the admission of the cheese wrapper

and the stocking. 8

The State submitted an instruction for first-degree murder to the jury and an alternate

instruction for second-degree felony murder. Both instructions were based on accomplice

liability. The first-degree murder instruction, Instruction No. 6, required the jury to find, inter

alia, that Defendant acted alone or aided or encouraged his brother Cecil in causing Victim’s

death by beating her and did so after deliberation. The second-degree felony murder instruction,

Instruction No. 7, required the jury to find that: Defendant committed first-degree burglary at

Victim’s home as submitted in Instruction No. 8; Defendant or his brother Cecil beat Victim

during the burglary; and Victim was killed as a result of the perpetration of the burglary. Finally,

Instruction No. 8 required the jury to find that: between November 2nd and 4th of 1984,

Defendant or Cecil knowingly entered Victim’s home; Defendant or Cecil did so for the purpose

of committing the crime of stealing therein; while Defendant or Cecil was in Victim’s home,

Victim was present therein and was not a participant in the crime; and with the purpose of

promoting or furthering the commission of first-degree burglary, Defendant acted alone or

Defendant acted together with or aided Cecil in committing the offense.

Three verdict forms were submitted to the jury and the jury could either, (1) find

Defendant guilty of first-degree murder as submitted in Instruction No. 6; (2) find Defendant

guilty of second-degree felony murder as submitted in Instruction No. 7; or (3) find Defendant

8
Additional evidence relevant to Defendant’s motions and objections will be set out as needed in Section II. of this
opinion.
7
not guilty of both crimes. 9 The jury found Defendant guilty of first-degree murder.

Defendant then filed a motion for judgment of acquittal notwithstanding the verdict of the

jury, or in the alternative, for a new trial (“post-trial motion”), which raised the same arguments

discussed at the beginning of this subsection and the claims he brings in this appeal. The trial

court denied Defendant’s post-trial motion, entered a judgment in accordance with the jury’s

verdict convicting Defendant of first-degree murder, and sentenced Defendant to life

imprisonment without parole. Defendant appeals.

II. DISCUSSION

Defendant raises five points on appeal, which we will consider in the following order. In

his fifth point on appeal, Defendant contends the trial court erred in denying his motion to

dismiss the crimes alleged in the information for pre-indictment delay. In his second point on

appeal, Defendant argues there was insufficient evidence to support his first-degree murder

conviction under a theory of accomplice liability. And in his first, third, and fourth points on

appeal, Defendant asserts the trial court erred in making various evidentiary rulings.

A. The Trial Court’s Denial of Defendant’s Motion to Dismiss

In Defendant’s fifth point on appeal, he contends the trial court erred in denying his

motion to dismiss the crimes alleged in the information for pre-indictment delay. Defendant

argues the State was negligent in failing to conduct DNA testing on the cheese wrapper and the

stocking found on or near Victim’s property until approximately twenty-seven years after her

murder. Defendant also asserts he was prejudiced by the delay in his indictment because a few

9
There was no verdict form submitted which allowed the jury to find Defendant guilty of first-degree burglary as
submitted in Instruction No. 8. Defendant was not charged with that crime, presumably because he was not a
suspect in the 1984 break-in and murder until 2011, which would have been after the expiration of the three-year
statute of limitations for prosecutions of class B felonies. See sections 556.036.1, .2(1), and .4 RSMo 1978
(effective 1-1-79) (providing that a prosecution for any felony other than murder or a class A felony must generally
be commenced within three years of when the offense is committed); sections 569.160.1(3) and .2 RSMo 1978
(effective 1-1-79) (first-degree burglary is a class B felony which occurs when, inter alia, a person knowingly enters
unlawfully into a structure for the purpose of committing a crime therein and there is another person present who is
not a participant in a crime).
8
of the items found on Victim’s kitchen floor (the Tupperware container, the large plastic bag

which had contained two grapefruits, the grapefruits themselves, and the frozen dinner) were

destroyed between the time they were collected in 1984 and the time Defendant was initially

indicted in 2011. 10 Officer Herbert Morie testified at trial that those items were destroyed

because they became moldy and a biohazard.

As determined by the Missouri Supreme Court in State v. Griffin, pre-indictment delay

only requires the dismissal of charges when it is demonstrated, (1) the defendant was prejudiced

by the delay; and (2) the State intended the delay to gain a tactical advantage over the defendant

(“the Griffin test”). 848 S.W.2d 464, 467 (Mo. banc 1993). It is the defendant’s burden to

demonstrate both prongs of the Griffin test have been met. State v. Kleine, 330 S.W.3d 805, 808

(Mo. App. S.D. 2011); State v. Lee, 859 S.W.2d 768, 769-71 (Mo. App. E.D. 1993).

In this case, Defendant concedes he cannot show the second prong of the Griffin test has

been met, “acknowledg[ing] that there is no evidence that the State in the present case caused the

delay in order to gain a tactical advantage.” Although Defendant argues Griffin should be

overruled because he believes a change in the law is necessary, Defendant concedes this point on

appeal must fail because our Court is bound to follow the most recent controlling decision of the

Missouri Supreme Court in Griffin. See Jones v. Galaxy 1 Marketing, Inc., 478 S.W.3d 556, 574

(Mo. App. E.D. 2015). Defendant admits he only raises the issue of his pre-indictment delay in

his appeal to this Court because he wants to preserve his claim that Griffin should be overruled,

should this case eventually be transferred to the Missouri Supreme Court. Based on the

foregoing, we cannot find the trial court erred in denying Defendant’s motion to dismiss the

crimes alleged in the information based on pre-indictment delay. Point five is denied.

10
While Defendant’s initial brief alleges Defendant was first indicted in 2010, the State’s respondent’s brief alleges
Defendant was first indicted in 2011. Defendant’s reply brief does not challenge the State’s assertion regarding the
timing of the initial indictment, and this Court’s review of the record reveals Defendant was initially indicted in
2011. Accordingly, we will refer to 2011 as being the year of Defendant’s initial indictment.
9
B. Whether there was Sufficient Evidence to Support Defendant’s Conviction for
First-Degree Murder under a Theory of Accomplice Liability

We next consider Defendant’s second point on appeal, in which he argues there was

insufficient evidence to support his first-degree murder conviction under a theory of accomplice

liability. Because Defendant’s argument explicitly and inherently challenges the trial court’s

denial of his motions for judgment of acquittal prior to submission of his first-degree murder

charge to the jury, the question of sufficiency is really an issue of whether the charge should

have been submitted to the jury. See State v. Myles, 479 S.W.3d 649, 660 (Mo. App. E.D. 2015).

1. Standard of Review

Appellate review of a claim that there was insufficient evidence to support a criminal

conviction is limited to a determination of “whether the [S]tate has introduced sufficient

evidence from which a reasonable juror could have found each element of the crime beyond a

reasonable doubt.” State v. Hosier, 454 S.W.3d 883, 898 (Mo. banc 2015). In making that

determination, great deference is given to the trier of fact, and an appellate court will not weigh

the evidence anew. State v. Nash, 339 S.W.3d 500, 509 (Mo. banc 2011). Additionally, all

evidence and inferences favorable to the State are accepted as true, and all contrary evidence and

inferences are disregarded. Id. However, an appellate court “may not supply missing evidence,

or give the [S]tate the benefit of unreasonable, speculative or forced inferences.” State v. Clark,

490 S.W.3d 704, 707 (Mo. banc 2016) (quoting State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc

2001) (overruled on other grounds)).

The State may meet its burden of proof by presenting either direct or circumstantial

evidence connecting the defendant to each element of the crime. State v. Burns, 444 S.W.3d

527, 529 (Mo. App. E.D. 2014). Furthermore, circumstantial evidence is given the same weight

as direct evidence in considering whether there was sufficient evidence to support a conviction.

Id. at 528-29.

10
 2. The Relevant and Admissible Evidence Adduced at Trial

The following relevant and admissible evidence was adduced at trial. 11 Victim’s

Granddaughter testified that while she and Defendant were dating in the years prior to Victim’s

murder, Defendant frequently went with Granddaughter to Victim’s home, it was not unusual for

Defendant to get himself food out of the refrigerator, and Defendant ate a lot of cheese.

Granddaughter also testified that during that same timeframe, Defendant became aware Victim

kept extra cash in the Calumet can located in the lower kitchen cabinets next to her refrigerator,

because Defendant saw Granddaughter steal money from the Calumet can when Victim was not

looking. Granddaughter also admitted that although she did not have a specific recollection of

Defendant’s brother Cecil being present at Victim’s home, she had previously stated she thought

Cecil would have been present at the home at some point.

The 1984 break-in of Victim’s home and her murder occurred very shortly after Victim’s

longtime housekeeper cleaned various areas of Victim’s house and kitchen, which Victim always

kept tidy. Around the two-day window in which the break-in and murder were committed,

Defendant and Cecil lived in a home located about one mile away and within walking distance of

Victim’s home.

Police discovered a person or persons had gained entry to Victim’s home in 1984 by

breaking out the glass window on the front door and crawling through that empty space. Several

areas of Victim’s home were ransacked, including the lower kitchen cabinets next to her

11
In his first, third, and fourth points on appeal, Defendant argues that evidence relating to the 1980 burglary, the
cheese wrapper, and the stocking were inadmissible. We do not refer to evidence relating to the 1980 burglary in
this subsection for two reasons. First, we find such evidence is not relevant to the determination we must later make
in the discussion of this point on appeal, i.e., whether there was sufficient evidence to support Defendant’s
first-degree murder conviction and specifically whether the State met its burden to show Defendant personally
deliberated on Victim’s death. In addition, as discussed in Section II.C.1. below, we hold that evidence relating to
the 1980 burglary was inadmissible at Defendant’s trial. However, we do refer to some evidence pertaining to the
cheese wrapper and stocking in this subsection because it is relevant to our discussion in this point and because, as
discussed in Section II.C.2. below, we hold that evidence was admissible at Defendant’s trial.

11
refrigerator and the refrigerator itself. The refrigerator door was found open, and lying on the

floor in front of the refrigerator were several food items including a piece of cheese with a bite

mark taken out of it and an empty single-serve cheese wrapper. In addition, a stocking was

found lying outside near the back of Victim’s property by an alley.

In the bedroom, Victim’s body was found lying on the floor. Victim, who was elderly

and weighed less than one-hundred pounds, had blood and multiple bruises on her face, a split

lip, and two broken ribs on each side of her body caused by blunt force. Victim’s cause of death

was subsequently determined to be repeated blunt trauma. There was no DNA evidence found in

the bedroom which linked Defendant or his brother Cecil to Victim’s killing.

However, DNA testing on the empty single-serve cheese wrapper found on the floor of

Victim’s kitchen revealed the presence of single-source DNA on the wrapper which was

consistent with Defendant’s DNA, and the probability of someone else in the general Caucasian

population having the same DNA profile was 1 in 741,000. In addition, DNA testing on the

stocking found by the alley near the back of Victim’s property revealed the presence of a mixture

of DNA consistent with Victim’s and Defendant’s brother Cecil’s DNA, and the probability of

someone besides Cecil in the general Caucasian population having the same DNA profile was 1

in 6.17 million.

Officers Young and Simpson, who were involved in investigating the 1984 break-in of

Victim’s home and her murder, testified they did not know how many individuals committed

Victim’s murder. Officer Young also testified it could have been as few as one person or as

many as five people.

3. General Law Pertaining to the State’s Burden of Proof

A person commits the crime of first-degree murder if “he knowingly causes the death of

12
another person after deliberation upon the matter.” Section 565.020.1 RSMo Supp. 1984. 12

“Deliberation” is defined as “cool reflection for any length of time no matter how brief[.]”

Section 565.002(3). The requirement of deliberation distinguishes first-degree murder from all

other forms of homicide. State v. Glass, 136 S.W.3d 496, 514 (Mo. banc 2004).

Where, as in this case, a defendant is tried for first-degree murder under a theory of

accomplice liability, it is not necessary for him to have personally performed each act

constituting the elements of the crime or for him to have been present when the victim was

killed. State v. Ferguson, 20 S.W.3d 485, 497 (Mo. banc 2000); State v. Gray, 887 S.W.2d 369,

377 (Mo. banc 1994). Nevertheless, in order to be responsible for another person’s acts, a

defendant must have acted together with or aided the other person either before or during the

commission of the murder with the purpose of promoting the crime. Ferguson, 20 S.W.3d at

497. In addition, the State must prove that the defendant personally deliberated upon the murder.

Id. Consistent with those principles, the Missouri Supreme Court has held the State makes a

submissible case of first-degree murder under a theory of accomplice liability only if it

introduces evidence from which a reasonable juror could have concluded beyond a reasonable

doubt that, (1) the defendant committed acts which aided another in killing the victim; (2) it was

the defendant’s conscious purpose in committing those acts that the victim be killed; and (3) the

defendant committed the acts after he personally deliberated on the victim’s death. State v.

O’Brien, 857 S.W.2d 212, 216-18 (Mo. banc 1993).

12
Unless otherwise indicated, all further statutory references are to RSMo Supp. 1984, which incorporates
legislative amendments through 1983. The 1983 amendments relevant to this appeal had an effective date of
October 1, 1984, which was approximately one month before Victim’s murder which took place sometime between
November 2nd and 4th of 1984. Therefore, the 1983 amendments govern this appeal. Any amendments made to
statutes at issue in this case which went into effect after November 4, 1984 are not relevant to this appeal.
13
 4. The Missouri Supreme Court’s Decision in State v. O’Brien and Other
Subsequent Missouri Supreme Court Precedent

In State v. O’Brien, the Missouri Supreme Court held the State did not make a

submissible case of first-degree murder under the preceding standard where the following

evidence was adduced at trial. Id. at 218-20. While the defendant and his roommate Daniel

Blount were at a bar, Blount solicited the defendant’s help in robbing fellow patron Sanford

Wood (“victim”), telling the defendant that, if he would just “lure” the victim outside, Blount

would “take care of the rest.” Id. at 216 (quotations in original). The defendant agreed, asked

the victim to step outside, and all three men left the bar. Id. After the defendant and the victim

had a brief conversation, defendant walked away and witnessed Blount pull the victim into a

gangway, knock him down, and reach into the victim’s pockets. Id. Subsequently, another bar

patron found the victim in the gangway, barely alive. Id. The victim later died from blunt force

injuries which were consistent with having been inflicted by someone stomping on his head. Id.

In the meantime, the defendant and Blount both went to a friend’s house. Id. Blount

announced that he had murdered someone, he displayed some cash he had taken, and his shoes

appeared to have blood on them. Id. Blount offered the defendant some of the victim’s money,

but the defendant refused. Id.

The defendant was charged with, inter alia, first-degree burglary, first-degree murder,

and the lesser-included offense of second-degree felony murder 13 based on the death of victim as

a result of defendant’s perpetration of first-degree burglary. Id. at 216-17, 220. The jury found

the defendant guilty of first-degree burglary and first-degree murder under a theory of

13
Second-degree felony murder is not considered a “nested” lesser-included offense because its elements are not a
subset of the higher offense of first-degree murder in that the offense of second-degree felony murder requires proof
of additional facts from those required to prove first-degree murder. State v. Blurton, 484 S.W.3d 758, 765, 766
(Mo. banc 2016). Nevertheless, second-degree felony murder is a lesser-included offense of first-degree murder
because it is denominated as such by statute. Id. at 763 n.1, 766 (referring to more recent versions of relevant
statutes); section 556.046.1(2) RSMo 1978 (effective date 1-1-79) (an offense is a lesser-included offense when,
inter alia, “[i]t is specifically denominated by statute as a lesser degree of the offense charged”); sections
565.025.2(1)(a) and 565.021.1(2) (second-degree felony murder is a lesser-included offense of first-degree murder).
14
accomplice liability. Id. at 217. Defendant appealed, arguing there was insufficient evidence to

support his first-degree murder conviction. Id. at 215.

The O’Brien Court held the State did not make a submissible case as to the second and

third elements of a first-degree murder charge based on accomplice liability, because a

reasonable juror could not have found or inferred the defendant intended the victim’s death or

that he coolly deliberated the victim’s fate. Id. at 218. In reaching that conclusion, the Missouri

Supreme Court found that although an intent to kill may be inferred from the use of a deadly

weapon, there was no deadly weapon used to kill the victim under the facts of the case, and the

evidence was insufficient to impute any of Blount’s alleged intent to the defendant where Blount

killed the victim by stomping him to death absent an agreement to kill the victim. Id. The Court

also found that while deliberation is ordinarily proved through proof of the circumstances

surrounding the killing in cases where the defendant personally caused the death of the victim,

“[w]here the defendant is simply an accessory and does not participate in the act of killing, any

inferences which may be raised by the manner in which the victim was killed cannot serve to

prove the defendant’s premeditation.” Id. at 218-19.

Missouri Supreme Court cases handed down after O’Brien expounded upon when

deliberation may be inferred in a case where a defendant is tried for first-degree murder under a

theory of accomplice liability. In State v. Rousan and State v. Gray, the Supreme Court

identified three “highly relevant” circumstances which are properly attributable to such a

defendant and may support an inference that he deliberated: (1) “the defendant or [his

accomplice] in the defendant’s presence made a statement or exhibited conduct indicating an

intent to kill prior to the murder”; (2) “the defendant knew that a deadly weapon was to be used

in the commission of a crime and that weapon was later used to kill the victim”; and (3) “the

defendant participated in the killing or continued with a criminal enterprise after it was apparent

that a victim was to be killed.” 961 S.W.2d 831, 841 (Mo. banc 1998); 887 S.W.2d at 376-77.
15
 5. Analysis as to Whether there was Sufficient Evidence Defendant Committed
First-Degree Murder under a Theory of Accomplice Liability

Before discussing the applicability of the previously-discussed precedent to the facts in

the case at bar, we must initially acknowledge that the circumstances of this case and the one

involving Defendant’s brother Cecil, also handed down today, are troubling. First, this Court is

aware it is possible that retrying the two cases – outcomes we find Missouri Supreme Court

precedent dictates for the reasons discussed below and in Cecil’s case – may present evidentiary

challenges for the State because it has been approximately thirty-two years since Victim’s

murder. Additionally, this Court agrees with Defendant’s concession in his brief that there was

sufficient evidence from which a reasonable juror could have inferred someone deliberated

before killing Victim because she was beaten to death and died after suffering multiple wounds

and repeated blows. See Glass, 136 S.W.3d at 514 (deliberation may be inferred where a victim

dies after suffering multiple wounds or repeated blows). Nevertheless, as will be discussed

below and in Cecil’s case, there is no such evidence in either of the cases before us from which a

reasonable juror could have found or inferred Defendant or his brother personally committed

Victim’s murder or personally deliberated in her killing. 14 Because this Court is aware of no

other person who was charged with Victim’s murder, the result of our cases is that no one may

be held accountable for first-degree murder for Victim’s killing, though Defendant and/or his

brother may be convicted of second-degree felony murder if a jury finds one or both of them

guilty of the offense upon retrial.

Despite those concerns, this Court is bound to follow controlling decisions of the

Missouri Supreme Court, which includes O’Brien and its progeny. See Jones, 478 S.W.3d at

14
Therefore, this case can be distinguished from the circumstances in O’Brien, where there was arguably evidence
from which a reasonable juror could have found or inferred the defendant’s accomplice (Blount) personally
committed the victim’s murder, including evidence that: Blount made a statement that he murdered the victim;
Blount was seen with the victim in the area he was found barely alive; and Blount was wearing bloody shoes. See
O’Brien, 857 S.W.2d at 216.
16
574. Those cases are instructive in determining whether the State made a submissible case that

Defendant committed first-degree murder on the basis of accomplice liability and specifically

whether the State met its burden to show Defendant personally deliberated on Victim’s death.

Here, a reasonable juror could have found or inferred from the relevant and admissible

evidence discussed above in Section II.B.2. (including Victim’s Granddaughter’s testimony, the

bite taken out of the cheese, and the DNA evidence relating to the cheese wrapper and the

stocking) that: Defendant and/or his brother had a motive to break-in to Victim’s house to obtain

cash from the Calumet can; Defendant and Cecil were linked to Victim’s home in the years prior

to the 1984 break-in and murder; Victim was killed during the perpetration of the 1984 burglary

of her home; Defendant and Cecil lived close to Victim near the time the 1984 crime occurred;

and DNA evidence linked Defendant and Cecil to Victim’s home or surrounding property near

the time the 1984 crime occurred.

However, similar to the circumstances in O’Brien, there was no evidence in this case that

Defendant and another person, including Cecil, had an agreement to kill Victim, and there was

no evidence Defendant personally caused Victim’s death. 15 See O’Brien, 857 S.W.2d at 216-19.

Also like in O’Brien, no deadly weapon was used to kill Victim; instead, she was beaten to

death. See id. at 218. Furthermore, none of the other “highly relevant” circumstances held to be

properly attributable to a defendant tried for first-degree murder under a theory of accomplice

liability are present in this case. Specifically, there was no evidence Defendant or Cecil in

Defendant’s presence made a statement or exhibited conduct indicating an intent to kill Victim

prior to her murder. See Rousan, 961 S.W.2d at 841; Gray, 887 S.W.2d at 376. Nor was there

15
We note the State’s respondent’s brief in Cecil’s case concedes, “it is unclear from the evidence in [Cecil’s] case
whether [Cecil] or his brother personally committed the murder.”
17
evidence Defendant participated in the killing. 16 See Rousan, 961 S.W.2d at 841; Gray, 887

S.W.2d at 377. Notably, the evidence in this case did not demonstrate at least two people

participated in Victim’s murder, as she was eighty-four years old and weighed less than one-

hundred pounds, Officers Young and Simpson testified they did not know how many individuals

committed Victim’s murder, and Officer Young testified it could have been as few as one person

or as many as five people. Finally, there was no evidence Defendant continued with a criminal

enterprise after it was apparent that Victim was to be killed. See id. Under these circumstances,

we cannot find there was sufficient evidence presented that Defendant personally deliberated on

Victim’s death. Moreover, such a finding would require us to supply missing evidence or give

the State the benefit of unreasonable, speculative, or forced inferences, something which this

Court may not do. See Clark, 490 S.W.3d at 707.

Finally, we address the State’s argument that there was sufficient evidence of

Defendant’s deliberation because Victim was beaten to death and died after suffering multiple

wounds and repeated blows. As we previously stated, we do find there is sufficient evidence

from which a reasonable juror could have inferred someone deliberated before killing Victim

because of the manner in which she was killed. See Glass, 136 S.W.3d at 514. Nevertheless, the

State’s argument that the manner in which Victim was killed supports a finding that Defendant

deliberated has no merit under the circumstances of this case. As stated in O’Brien, “[w]here the

defendant is simply an accessory and does not participate in the act of killing, any inferences

16
In support of its argument that there was sufficient evidence Defendant participated in Victim’s murder, the State
cites to State v. Grim, 854 S.W.2d 403 (Mo. banc 1993). In Grim, the Missouri Supreme Court held there was
sufficient evidence the defendant committed the crime of second-degree murder, based on either principal or
accomplice liability, where the victim was stabbed to death with a knife, the defendant left a fingerprint in the
victim’s blood, and there was evidence the defendant was standing only a few feet from the victim’s body. Id. at
410-15. Grim can be distinguished from this case for several reasons. First, this case involves the sufficiency of the
evidence for a conviction of first-degree murder, which requires proof of deliberation, as opposed to a conviction for
second-degree murder, which does not require deliberation to be proved. Compare section 565.020.1 with section
565.021.1. Additionally, unlike the circumstances in Grim, in this case there was no evidence Victim’s death was
caused by a deadly instrument, the presence of single-source DNA on the cheese wrapper which was consistent with
Defendant’s DNA was not in any way connected with Victim’s blood, and there was no evidence Defendant was
only a few feet away from Victim’s body. Accordingly, the State’s reliance on Grim is misplaced.
18
which may be raised by the manner in which the victim was killed cannot serve to prove the

defendant’s premeditation.” 857 S.W.2d at 219; see also Glass, 136 S.W.3d at 514 (finding an

appellate court may permit an inference of deliberation where there is evidence a defendant

committed a murder which required some time to complete because of the particular method of

attack). Because there was no evidence Defendant participated in the act of killing Victim, the

manner of her death cannot be used to support an inference that he deliberated. O’Brien, 857

S.W.2d at 219.

Based on the foregoing, there was not sufficient evidence from which a reasonable juror

could have found or inferred that Defendant personally deliberated in Victim’s killing, and

therefore, we reverse Defendant’s conviction for first-degree murder. See id. at 217-20.

6. Whether Remand or Other Action is Appropriate

We now turn to whether this case requires a remand for a new trial on second-degree

felony murder or entry of a conviction for that offense. Again, we are guided by O’Brien in

making this determination.

As previously stated, the defendant in O’Brien was charged with first-degree murder, the

lesser-included offense of second-degree felony murder based on the death of the victim as a

result of the defendant’s perpetration of the felony of first-degree burglary, and first-degree

burglary. Id. at 216-17, 220. The jury was given a verdict form as to each of those three

offenses and found the defendant guilty of first-degree murder under a theory of accomplice

liability and first-degree burglary. Id. at 216-17.

On appeal, the defendant’s only challenge to the sufficiency of the evidence was with

respect to his first-degree murder conviction. Id. at 215, 220. While the Supreme Court in

O’Brien held there was insufficient evidence to support the defendant’s first-degree murder

conviction and reversed that conviction, the Court also held the evidence was sufficient to

support the submission of second-degree felony murder based on the death of the victim as a
19
result of the defendant’s perpetration of a first-degree burglary. Id. at 220. The Court found it

was not possible for it to enter a conviction for second-degree felony murder because the jury

was not required to find all of the elements of the offense to find the defendant guilty of first-

degree murder; specifically, the jury was not required to find that the victim’s death occurred as

a result of the commission of the defendant’s perpetration of the first-degree burglary. Id.

Nevertheless, the Missouri Supreme Court found it was proper to remand the case for a new trial

on the charge of second-degree felony murder because there was sufficient evidence to support

the submission of the offense, explicitly rejecting a claim made by the defendant that such a

disposition would violate double jeopardy. Id. at 220-21.

Here, similar to the circumstances in O’Brien, the information in this case not only

charged Defendant for first-degree murder but also gave Defendant notice that the State may

submit an instruction for second-degree felony murder to the jury based on the death of Victim

as a result of Defendant’s perpetration of the felony of first-degree burglary. See id. at 216-17,

220. In addition, both of those charges were submitted to the jury, and the jury found Defendant

guilty of first-degree murder under a theory of accomplice liability and did not reach the issue of

whether Defendant was guilty of second-degree felony murder. See id.

A person commits second-degree felony murder if he, inter alia, “[c]ommits or attempts

to commit any felony, and, in the perpetration or the attempted perpetration of such felony . . .

another person is killed as a result of the perpetration or attempted perpetration of such felony . .

..” Section 565.021.1(2). A person commits the class B felony of first-degree burglary if, inter

alia, he knowingly enters unlawfully into a structure for the purpose of committing a crime

therein and there is another person present who is not a participant in a crime. Sections

569.160.1(3) and .2 RSMo 1978 (effective 1-1-79).

Unlike with first-degree murder, a defendant may be charged and convicted as an

accomplice to second-degree murder without a finding that the defendant had any culpable
20
mental state other than an intent to promote the commission of the offense. 32 Mo. Practice

Series section 12.3 (2d ed. 2016); see also State v. Smith, 229 S.W.3d 85, 95 (Mo. App. W.D.

2007).

In other words, a defendant may be convicted of second degree murder as an aider
and abettor without proof that the defendant specifically intended to kill the victim;
rather, the proof must establish that the defendant had a common purpose to
promote or further the commission of murder in the second degree by the
accomplice.

32 Mo. Practice Series section 12.3 (2d ed. 2016).

Based on the relevant and admissible evidence set forth in Section II.B.2. above, we hold

there was sufficient evidence from which a reasonable juror could have found, (1) Defendant

committed or attempted to commit the felony of first-degree burglary by knowingly entering

unlawfully into Victim’s home for the purpose of committing a crime therein and she was

present and not a participant in the crime; and (2) Victim was killed as a result of Defendant’s

perpetration or attempted perpetration of the burglary. In fact, Defendant concedes in his brief

that there was sufficient evidence he participated in the 1984 burglary and that, “[h]ad

[Defendant] been charged with felony murder, there very well could have been sufficient

evidence to support a conviction.” Further, Defendant’s brief urges this Court to remand this

case for a new trial on the charge of second-degree felony murder.

Because the evidence was sufficient to support the submission of second-degree felony

murder based on the death of Victim as a result of Defendant’s perpetration or attempted

perpetration of a first-degree burglary, and because the jury in this case was not required to find

that Victim’s death occurred as a result of the commission of a first-degree burglary, we remand

21
the case for a new trial on the charge of second-degree felony murder. 17 See O’Brien, 857

S.W.2d at 220-21.

7. Conclusion as to Defendant’s Second Point on Appeal

Based on the foregoing, Defendant’s conviction for first-degree murder is reversed and

the cause is remanded for a new trial for second-degree felony murder. Point two is granted.

C. The Trial Court’s Evidentiary Rulings

We now turn to Defendant’s remaining points on appeal, in which he argues the trial

court erred in making various evidentiary rulings. In Defendant’s first point on appeal, he

contends the trial court erred in admitting evidence relating to the 1980 burglary. And in

Defendant’s third and fourth points on appeal, he asserts the trial court erred in admitting the

cheese wrapper and the stocking into evidence. We consider the merits of these points because

they involve matters which may arise on retrial. See id. at 221 (similarly finding).

1. Admission of Evidence Relating to the 1980 Burglary

In Defendant’s first point on appeal, he contends the trial court erred in admitting

evidence relating to the 1980 burglary because it was improper evidence of a prior uncharged

crime. It is undisputed the only crime Defendant was charged with committing in this case was

Victim’s 1984 murder – first-degree murder and an alternative charge of second-degree felony

murder based on the death of Victim as a result of Defendant’s perpetration of felony first-degree

burglary in 1984.

17
We recognize that unlike in this case, the defendant in O’Brien was charged with first-degree burglary, the jury
was given a verdict form on first-degree burglary, and the jury subsequently found him guilty of that offense.
O’Brien, 857 S.W.2d at 216-17. The fact that none of those circumstances were present in this case does not change
the applicability of O’Brien’s holding that when an appellate court reverses a first-degree murder conviction for
insufficient evidence, it is proper to remand the case for a new trial on a charge of second-degree felony murder
where there was sufficient evidence to support the submission of the offense. This is because: “The State is not
required to successfully convict a defendant of an underlying felony as a prerequisite to a conviction for felony
murder. To the contrary, an underlying felony to support felony murder need not even be charged.” State v. Blair,
443 S.W.3d 677, 686 (Mo. App. W.D. 2014) (emphasis omitted); see also Blurton, 484 S.W.3d at 767-68
(indicating that it is not necessary for a jury to be instructed to decide a defendant’s guilt of the felony underlying a
second-degree felony murder charge).

22
 a. Standard of Review

It is within a trial court’s broad discretion to admit or exclude evidence at trial and an

evidentiary ruling is reviewed for an abuse of discretion. State v. Hood, 451 S.W.3d 758, 765

(Mo. App. E.D. 2014). A trial court abuses its discretion when its decision “is clearly against the

logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.”

Id. We will only reverse an evidentiary error if prejudice is demonstrated, i.e., if there is a

reasonable probability the trial court’s alleged error affected the outcome of the trial. Id.

b. Evidence Relating to the 1980 Burglary Which was Adduced at Trial

Over Defendant’s continuing objection, Officer Simpson, who was present at the crime

scene after the 1980 burglary of Victim’s home and after the 1984 break-in of Victim’s home

and her murder, was allowed to testify about the similarities between the two crimes 18 and the

following details of the 1980 burglary.

In March of 1980, Victim’s house was broken into while she was in the hospital. Police

searched the premises and conducted an investigation which revealed the following. A person or

persons gained entry into Victim’s home removing a screen and pushing in a basement window

located in the back of the home. Three lower kitchen cabinets next to Victim’s refrigerator were

open, but the other kitchen cabinets and all drawers remained closed. Two opened 7UP bottles

with condensation on them were sitting on the dining room table next to an open bag of chips,

and a flashlight owned by Victim was on the table near the food. Additionally, the covers on

Victim’s bed located in the bedroom had been moved. Police classified the break-in of Victim’s

home as a burglary. Around the time the crime occurred, police officers lifted a latent fingerprint

from the refrigerator door handle; however, it went unidentified until 1986, when officers

determined the fingerprint belonged to Defendant. Nevertheless, Defendant was not a suspect in

18
Evidence of similarities and differences between the 1980 burglary and the 1984 murder and related break-in will
be discussed below in Sections II.C.1.e.i. and II.C.1.e.ii.
23
the 1980 burglary near the time it occurred and he was never charged in connection with the

crime. In addition, Defendant’s brother Cecil was not ever a suspect in or charged with the 1980

burglary. Sometime after the 1980 burglary, Victim had bars installed on the basement windows

of her home. During the State’s closing argument in Defendant’s case, the prosecutor argued

that Defendant’s alleged involvement in the 1980 burglary was evidence of his guilt in the 1984

murder and related break-in.

c. Relevant Law

“A criminal defendant has the right to be tried only for the offense for which he is

charged.” State v. Austin, 411 S.W.3d 284, 293 (Mo. App. E.D. 2013) (quoting State v. Blakey,

203 S.W.3d 806, 811 (Mo. App. S.D. 2006)). Accordingly, evidence of an uncharged crime is

inadmissible if it is offered for the sole purpose of showing the defendant’s propensity to commit

the crime for which he is charged. State v. Miller, 372 S.W.3d 455, 473 (Mo. banc 2012);

Austin, 411 S.W.3d at 293-94. However, evidence of an uncharged crime is admissible if it is

both logically and legally relevant. Austin, 411 S.W.3d at 294.

Evidence is considered to be logically relevant if it has some legitimate tendency to

directly establish the defendant’s guilt of the charge for which he is on trial. Id. There are

several generally-recognized exceptions which may make evidence of an uncharged crime

logically relevant. State v. Jackson, 228 S.W.3d 603, 606 (Mo. App. W.D. 2007). These

exceptions include when evidence tends to establish, (1) motive; (2) the identity of the person

charged; (3) intent; (4) the absence of mistake or accident; (5) a common scheme or plan; or (6) a

complete and coherent picture of the sequence of events surrounding the offense charged. Id.;

Austin, 411 S.W.3d at 294. Even if the evidence of an uncharged crime does not fall within one

of the previously-mentioned exceptions, it may still be admissible if it is somehow otherwise

logically relevant and if it is legally relevant. Jackson, 228 S.W.3d at 606.

24
 Evidence is considered to be legally relevant if its probative value outweighs its

prejudicial effect. Austin, 411 S.W.3d at 294. The admission of evidence of an uncharged crime

runs a risk of encouraging the jury to convict the defendant because of his propensity to commit

the crime for which he is charged, and evidence of other crimes is considered to be highly

prejudicial. State v. Nelson, 178 S.W.3d 638, 642 (Mo. App. E.D. 2005). Therefore, “evidence

of other crimes should be utilized only when there is strict necessity.” Id. (quoting State v. Helm,

892 S.W.2d 743, 745 (Mo. App. E.D. 1994)); see also Middleton v. State, 80 S.W.3d 799, 808

(Mo. banc 2002); State v. Collins, 669 S.W.2d 933, 936 (Mo. banc 1984) (superseded on other

grounds). Although generally the balancing of the effect and value of evidence lies within the

sound discretion of the trial court, an appellate court “should require that the admission of

evidence of other crimes be subjected to rigid scrutiny because such evidence could raise a

legally spurious presumption of guilt in the minds of the jurors.” State v. Davis, 211 S.W.3d 86,

88 (Mo. banc 2006) (quoting State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992)) (internal

quotations omitted).

In this case, the State argues evidence relating to the 1980 burglary is logically relevant

because it tends to establish Defendant’s motive and identity for the 1984 murder and related

break-in. The State further argues the 1980 burglary evidence is legally relevant because its

probative value in tending to establish Defendant’s alleged motive and identity outweighs its

prejudicial effect. 19

d. Motive

The State argues the evidence relating to the 1980 burglary tends to establish Defendant

had a motive for the 1984 murder and related break-in because the person committing the 1980

19
We note that in Defendant’s brother Cecil’s appeal, also handed down today, the State argues the 1980 burglary
evidence is also admissible to establish intent, an argument we reject for the reasons asserted in that opinion.
25
burglary “was apparently looking for the same item (the Calumet can containing money) in the

lower kitchen cabinets as the person committing the 1984 break-in.”

Even assuming arguendo that the evidence relating to the 1980 burglary could be

considered logically relevant to show Defendant’s motive for the 1984 murder and related break-

in, the evidence relating to the 1980 burglary was only admissible under the motive exception if

the evidence was also legally relevant. See Austin, 411 S.W.3d at 294. Although Defendant’s

knowledge that Victim had a Calumet can containing money in her home had some probative

value, the probative value of the evidence relating to the 1980 burglary was exceeded by the

potential prejudicial effect of raising a presumption in the minds of the jurors that Defendant was

guilty of the 1984 crime. See Davis, 211 S.W.3d at 88. Additionally, there was not a strict

necessity to admit evidence relating to the 1980 burglary to establish that an alleged motive for

the 1984 crime was a search for the Calumet can because other evidence adduced at trial

sufficiently established such an alleged motive. Specifically, Victim’s Granddaughter testified

that when she and Defendant were dating in 1979, he became aware Victim kept extra cash in the

Calumet can located in the lower kitchen cabinets next to her refrigerator, because Defendant

saw Granddaughter steal money from the Calumet can when Victim was not looking.

Accordingly, we find the prejudicial effect of the evidence relating to the 1980 burglary

outweighs any alleged probative value of and necessity for the evidence to show motive, and

therefore, it was not legally relevant for that purpose. See Collins, 669 S.W.2d at 936 and State

v. Garrett, 825 S.W.2d 954, 958 (Mo. App. E.D. 1992) (similarly holding); see also Austin, 411

S.W.3d at 294. Therefore, the evidence relating to the 1980 burglary was inadmissible under the

motive exception. See Austin, 411 S.W.3d at 294.

26
 e. Identity

We now turn to whether evidence relating to the 1980 burglary is logically relevant

because it tends to identify Defendant as the person who committed the 1984 murder and related

break-in.

Evidence is logically relevant under the identity exception 20 if the identity of the

wrongdoer is at issue, and the State demonstrates the defendant is the perpetrator who has

committed the charged crime by showing he has committed other uncharged acts which are

sufficiently similar to the crime charged with respect to time, place, and method. State v.

Bernard, 849 S.W.2d 10, 17 (Mo. banc 1993) (partially superseded on other grounds).

For the prior conduct to fall within the identity exception, there must be more than
mere similarity between the crime charged and the uncharged crime. The charged
and uncharged crimes must be nearly ‘identical’ and their methodology ‘so unusual
and distinctive’ that they resemble a ‘signature’ of the defendant’s involvement in
both crimes.

Id.; see State v. Bowman, 337 S.W.3d 679, 686 (Mo. banc 2011); Davis, 211 S.W.3d at 89. The

bar for establishing that an uncharged crime falls within this exception is high. Bowman, 337

S.W.3d at 686.

i. Similarities Between the 1980 and 1984 Crimes

In this case, Officer Simpson testified there were multiple similarities between the 1980

and 1984 crimes. First, he testified that the 1980 and 1984 crimes were similar because in both

instances, there was a forced entry; in 1980, a screen had been removed from the basement

window in the back of the house and the window had been pushed in, and in 1984, the glass

20
The State refers to this exception as the “identity exception,” and Defendant refers to it as the “modus operandi
exception.” The Missouri Supreme Court has used both of these terms and in differing ways. State v. Henderson,
105 S.W.3d 491, 496 (Mo. App. W.D. 2003). Regardless of what the exception is called or what it may resemble,
the standard the Missouri Supreme Court has adopted to determining whether evidence is admissible is the same and
is the one we use below in this case. See id. (similarly finding); compare State v. Bowman, 337 S.W.3d 679, 686-87
(Mo. banc 2011), with Davis, 211 S.W.3d at 88-89, and State v. Bernard, 849 S.W.2d 10, 17 (Mo. banc 1993)
(partially superseded on other grounds). For purposes of this appeal, we will refer to this exception as the “identity
exception.”
27
window on the front door had been broken out and removed. Second, a flashlight found on the

dining room table in 1980 was the same flashlight found outside near the back of Victim’s

property in 1984. There was also evidence presented at trial that Victim always kept the

flashlight in her bedroom on the top of shelves built into the headboard of her bed, suggesting the

flashlight was moved from the bedroom in both crimes.

Third, some of the same lower kitchen cabinets – three below the counter near the

refrigerator – had been left opened in both incidents, and the kitchen cabinets above the counter

remained closed in both incidents. And finally, in both crimes, the evidence demonstrated the

perpetrator(s) consumed food at the crime scenes and took some food items from the refrigerator.

In 1980, police found two opened 7UP bottles with condensation on them and an open bag of

potato chips sitting on the dining room table, and police lifted a latent fingerprint from the

refrigerator door handle. In 1984, the refrigerator door and crisper drawer were open, and lying

on the floor in front of the refrigerator were a large plastic bag containing some grapefruit, a

frozen meal, a Tupperware container, a piece of cheese with a bite mark taken out of it, and an

empty single-serve cheese wrapper.

ii. Further Testimony from Officer Simpson and Differences
Between the 1980 and 1984 Crimes

Officer Simpson testified that because he considered the similarities between the 1980

burglary and the 1984 break-in and murder to be “uncanny” and “striking,” he believed there

“was a good possibility the same person was responsible for both [the 1980 and 1984 crimes].”

Nevertheless, Officer Simpson admitted on cross-examination that he did not have any idea how

many people committed the crimes and he had not formed an opinion on whether it was one or

more persons. In addition, further testimony from Officer Simpson and other evidence adduced

at trial also revealed there were several differences between the 1980 and 1984 crimes,

28
notwithstanding the fact that no one was present in the house or hurt in 1980 whereas Victim was

murdered there in 1984.

First, the points of entry were on different sides of the house in 1980 (the back) and 1984

(the front), although Victim did have bars installed on the basement windows sometime after the

1980 burglary. Second, the flashlight which was apparently moved from the bedroom in both

crimes was found in different locations; in 1980, it was found on the dining room table, whereas

in 1984 it was found outside near the back of Victim’s property.

One of most notable differences between the two crimes is there was generally more

ransacking and more areas of the home disturbed in 1984 than in 1980. In 1980, the only areas

of the home disturbed were: the basement only to the extent that was the area the perpetrator(s)

entered the home; the kitchen only to the extent that three lower kitchen cabinets were opened

and a fingerprint was found on the refrigerator door; and the bedroom only to the extent that the

covers on Victim’s bed had been moved.

In stark contrast, in the 1984 crime, Victim’s basement, kitchen, bedroom, and hallway

had been ransacked, and several drawers, cabinets, and items were opened throughout the house.

In 1984 only, lock boxes had been dumped on the basement floor and personal papers were

spread across the floor. In the kitchen, one lower cabinet and two drawers next to Victim’s

refrigerator were found open in 1984 that were not found open in 1980. In addition, in 1984

only, various items were dumped out on the kitchen countertop; the bread box, flour tin, and

sugar tin were open; a pair of gloves was found on the kitchen floor; a white corner kitchen

cabinet had top and bottom drawers which were open; the refrigerator door and crisper drawer

were open; and food was lying on the kitchen floor. In the bedroom, unlike in 1980 where only

the covers on Victim’s bed had been moved, in 1984: clothes and papers were thrown around on

the bedroom floor; two kitchen-type knives and a metal box were found on the floor; the

bedroom closet was open; multiple dresser drawers were pulled out; and the back of a clock on
29
the top of the dresser had been opened up. Finally, in 1984 only, doors on two cabinets were

opened and items were dumped on the floor in the hallway; one cabinet had a drawer which was

open and another cabinet had a door which was open in the dining room; and one cabinet had a

door open and a closet door was open in the living room.

Additionally, although food was consumed during the 1980 and 1984 incidents, the

consumed food in each incident was different in substance and quantity and was found in

different rooms of the home. Specifically, in 1980, two open 7UP bottles and open bag of potato

chips were found on the dining room table, whereas in 1984 a piece of cheese with a bite taken

out of it was found on the kitchen floor.

iii. Analysis

In light of all of the several and significant differences between the 1980 and 1984

crimes, we cannot find the crimes were nearly identical or that the methodology used to commit

each crime was so unusual and distinctive to establish any kind of signature. The fact that there

were multiple similarities between the two crimes does not change this result. See Bernard, 849

S.W.2d at 17 (“[f]or the prior conduct to fall within the identity exception, there must be more

than mere similarity between the crime charged and the uncharged crime”); see also Davis, 211

S.W.3d at 87-89 (holding uncharged robbery was not sufficiently similar to be admissible under

the identity exception in case involving charged robbery because although the two crimes had

multiple similarities, they were different in several respects).

Here, although there was forced entry in the 1980 and 1984 crimes, the entry was not

nearly identical nor was it a methodology so unusual and distinctive to resemble a signature

because, (1) Officer Simpson testified that in a typical burglary there is a forced entry; and (2)

the points of entry were different in both crimes. Similarly, although there was evidence

indicating Victim’s flashlight was moved from her bedroom in both crimes, it was found by

police in different locations (inside the home in 1980 and outside the home in 1984), and
30
therefore, this factor also does not render the crimes sufficiently similar to meet the identity

exception. Further, we find the disturbance to some of the same kitchen cabinets in both crimes

does not make the two crimes sufficiently similar under the identity exception because multiple

other areas of the kitchen and home were much more disturbed and ransacked in 1984.

Finally, while the perpetrator(s) consumed food at the crime scenes and appeared to take

items from the refrigerator in both crimes, behavior Officer Simpson characterized as “very

unusual,” multiple Missouri cases indicate that it is not completely uncommon for perpetrators to

consume or move food while burglarizing a house. See e.g. State v. Agee, 350 S.W.3d 83, 86

(Mo. App. S.D. 2011) (homeowner arrived home to find burglars eating food from his

refrigerator); State v. Parsons, 152 S.W.3d 898, 900 (Mo. App. W.D. 2005) (officers conducting

investigation of a home suspected a burglary and found food scattered throughout the house);

State v. Childress, 901 S.W.2d 321, 321-22 (Mo. App. E.D. 1995) (defendant broke into house

and ate bread and cookies) (overruled on other grounds). 21 Additionally, the consumed food in

each incident at issue in this case was different in substance and quantity and was found in

different rooms of the home. Therefore, we cannot find the crimes were either nearly identical or

that the methodology in both crimes was so unusual and distinctive to resemble a signature based

upon the consumption of food and taking of items from the refrigerator in both crimes.

Under the circumstances of this case, we hold the evidence relating to the 1980 burglary

is not sufficiently similar as to tend to identify Defendant as the person who committed the 1984

murder and related break-in. Accordingly, we hold the 1980 burglary evidence does not have a

legitimate tendency to directly establish Defendant’s guilt for the 1984 crime, and therefore, is

not logically relevant under the identity exception. See Austin, 411 S.W.3d at 294.

21
See also State v. Ellifrits, 459 S.W.2d 293, 294-95 (Mo. banc 1970) (neighbors of homeowners who were
burglarized discovered home was ransacked, dirty dishes were in the sink, and food was left on the table); State v.
Figgins, 839 S.W.2d 630, 631, 634 (Mo. App. W.D. 1992) (police suspected defendant took bites of hot dog at
scene of burglary and murder).

31
 We also hold the evidence relating to the 1980 burglary is not legally relevant under the

identity exception. The evidence arguably possessed some probative value in identifying

Defendant as a perpetrator in the 1984 crime, because in 1986, police determined the latent

fingerprint taken from the refrigerator door handle in 1980 belonged to Defendant, and in 2011,

DNA testing done on the cheese wrapper found in the kitchen after the 1984 crime revealed the

presence of DNA consistent with Defendant’s. However, any such probative value was

diminished because the two incidents were neither nearly identical nor sufficiently unusual and

distinctive to establish any kind of signature, and because the two incidents occurred over four

years apart. In addition, any probative value of the 1980 burglary evidence was exceeded by the

potential prejudicial effect of raising a presumption in the minds of the jurors that Defendant was

guilty of the 1984 crime. See Davis, 211 S.W.3d at 88. Moreover, there was not a strict

necessity to admit evidence relating to the 1980 burglary in order to identify Defendant as a

person involved in the 1984 murder and related break-in, where, inter alia, the 2011 DNA testing

of the cheese wrapper linked him to the 1984 crime, the 2011 DNA testing of the stocking linked

his brother to the crime, and Victim’s Granddaughter’s testimony established Defendant had

previously been at Victim’s home and she also thought Cecil would have been present at the

home at some point.

Based on the foregoing, the evidence relating to the 1980 burglary was neither logically

nor legally relevant to identify Defendant as a person involved in the 1984 murder and related

break-in. Therefore, the evidence of the uncharged 1980 crime was inadmissible under the

identity exception. See Austin, 411 S.W.3d at 294.

f. Conclusion as to Defendant’s First Point on Appeal

Because the State only relies on the motive and identity exceptions and we cannot find

the evidence relating to the 1980 burglary evidence falls within some other exception or is

somehow otherwise logically and legally relevant, we hold the trial court abused its discretion in
32
admitting evidence relating to the 1980 burglary. Moreover, because we have already held in

our discussion of Defendant’s second point on appeal that this cause needs to be reversed for a

new trial due to there being insufficient evidence to support Defendant’s conviction for first-

degree murder, it is unnecessary for us to discuss whether there is a reasonable probability the

trial court’s erroneous admission of evidence relating to the 1980 burglary affected the outcome

of his trial at issue in this case. Point one is granted.

2. Admission of the Cheese Wrapper and Stocking

In Defendant’s third and fourth points on appeal, he asserts the trial court erred in

admitting the cheese wrapper (Exhibit 58) and the stocking (Exhibit 53) into evidence because

the State did not establish a sufficient chain of custody for the exhibits.

a. General Law and Standard of Review

In order for a trial court to properly receive an exhibit and testimony regarding tests

performed on the exhibit as evidence at trial, the State must establish the identity of the exhibit

and that it was in the same condition when tested as when it was originally seized. State v.

Spears, 452 S.W.3d 185, 196 (Mo. App. E.D. 2014); State v. Dawson, 985 S.W.2d 941, 953

(Mo. App. W.D. 1999). The State may meet this burden by establishing a sufficient chain of

custody. State v. Pennell, 399 S.W.3d 81, 90 (Mo. App. E.D. 2013).

“The determination of whether a sufficient chain of custody has been established for the

admission of an exhibit is a matter within the sound discretion of the trial court.” Id. As

previously stated, a trial court abuses its discretion when its decision “is clearly against the logic

of the circumstances and is so unreasonable as to indicate a lack of careful consideration.”

Hood, 451 S.W.3d at 765.

The chain of custody for an exhibit is considered to be sufficient where the State provides

evidence showing “reasonable assurance that the exhibit offered is the same evidence seized and

is in substantially the same condition as when seized.” State v. Davenport, 924 S.W.2d 6, 9 (Mo.
33
App. E.D. 1996). The purpose of this rule is to prevent an exhibit from being altered,

substituted, or tampered with – all issues which the trial court is in the best position to determine.

State v. Russ, 537 S.W.2d 216, 219 (Mo. App. 1976); see State v. Nettles, 216 S.W.3d 162, 166

(Mo. App. S.D. 2006).

The “reasonable assurance” standard “does not require proof of hand-to-hand custody, a

showing that the exhibit was continually watched, or proof of the exclusion of every possibility

that the evidence has been disturbed.” State v. Sammons, 93 S.W.3d 808, 810 (Mo. App. E.D.

2002). Moreover, the trial court may assume, absent a showing of bad faith or tampering, that

the officials charged with having custody of an exhibit properly discharged their duties and that

no tampering of the evidence occurred. Spears, 452 S.W.3d at 197.

b. The Cheese Wrapper

We first consider Defendant’s third point on appeal, which involves whether the State

established a sufficient chain of custody for the admission of the cheese wrapper.

i. Evidence Adduced at Trial

The following evidence relating to the chain of custody of the cheese wrapper was

adduced at trial. Officer Young, the first officer to respond to Victim’s house on the day she was

found murdered (November 4, 1984), saw a single-slice cheese wrapper lying on the floor in

front of the refrigerator. Later that same day, Officer Simpson arrived at Victim’s house and saw

a single-slice cheese wrapper lying on the floor in front of the refrigerator. Officer Simpson saw

Detective Robert Brockmeyer, who was in charge of processing the scene of Victim’s murder,

pick up the cheese wrapper and put it in an evidence envelope, which he signed. Detective

Brockmeyer was deceased by the time of Defendant’s trial, and therefore, he was not available to

testify; however, other officers testified as to the following.

Officer Simpson testified that after Detective Brockmeyer seized the cheese wrapper,

Detective Brockmeyer processed the wrapper for fingerprints back at the police station’s secured
34
ballistics room because of the size and nature of the wrapper. The ballistics room was used for

processing and dusting items for fingerprints before depositing those items into evidence. In

November 1984, only Officer Simpson, Detective Brockmeyer, and their commander had access

to the ballistics room.

During that same timeframe, evidence could be deposited with the St. Charles City Police

Department’s evidence officer either by hand or via a locker system. When evidence was

deposited via the locker system, an officer would put the evidence in a secure locker, remove the

key, and then deposit the key in a one-way mail chute that went into the evidence room. When

an officer seizing an item of evidence would process it in the ballistics room before turning it

over to the evidence officer, an item could take several days to process before it was taken to the

evidence locker. In addition, it was not unusual for a piece of evidence to be turned into the

evidence officer seven or ten days after it was originally seized.

An evidence receipt for the cheese wrapper contained the signatures of Detective

Brockmeyer and Officer Morie, the evidence officer, and showed that the evidence envelope

containing the cheese wrapper was received by Officer Morie on November 14, 1984. Evidence

receipts were kept in a locked file in Officer Morie’s office, and the evidence itself was

maintained in the locked evidence area.

When the cheese wrapper was seized by Detective Brockmeyer and put into the evidence

envelope, the wrapper did not have fingerprint powder. However, the cheese wrapper did have

fingerprint powder on it when it was taken to the St. Charles County Sherriff’s Department for

DNA testing in 2011 and when it was offered into evidence at trial. Nevertheless, the DNA

expert who analyzed the cheese wrapper for DNA testified that the fingerprint powder would not

have affected the subsequent DNA testing. In addition, Officer Simpson testified fingerprint

powder is “exactly what [he would] expect to see” on an item which has been processed for

fingerprints. DNA testing performed on the cheese wrapper in 2011 revealed the presence of
35
single-source DNA on the wrapper which was consistent with Defendant’s DNA, and the

probability of someone else in the general Caucasian population having the same DNA profile

was 1 in 741,000.

ii. Defendant’s Arguments and Analysis

Defendant first argues the State failed to provide a reasonable assurance that the cheese

wrapper was in substantially the same condition when tested and admitted into evidence as it was

when it was originally seized because the wrapper was collected from Victim’s house on

November 4, 1984, but it was not received by the evidence officer until November 14, 1984.

Defendant also contends the State provided no testimony regarding what happened to the

wrapper during that ten-day period.

However, the State did provide testimony explaining what happened to the cheese

wrapper between November 4th and 14th. 22 Specifically, Officer Simpson testified that after he

saw Detective Brockmeyer seize the cheese wrapper, Detective Brockmeyer processed the

wrapper for fingerprints at the police station’s secured ballistics room because of the size and

nature of the wrapper, a room to which only Officer Simpson, Detective Brockmeyer, and their

commander had access. There was also testimony that an item could take several days to process

before it was taken to the evidence locker, and it was not unusual for a piece of evidence to be

turned into the evidence officer seven or ten days after it was originally seized. Defendant

argues the preceding testimony was insufficient to provide a sufficient chain of custody because

the testimony was from crime scene investigator Officer Simpson and Officer Morie, who was

22
Because the State provided testimony explaining what happened to the cheese wrapper between November 4th
and 14th, this case can be distinguished from State v. Bode, 125 S.W.3d 924 (Mo. App. W.D. 2004) and State v.
Scott, 647 S.W.2d 601 (Mo. App. W.D. 1983), two cases relied on by Defendant in this point and in point four. In
Bode, the Western District held the State did not establish a sufficient chain of custody for a lab report offered into
evidence where, inter alia, there was no testimony as to what happened to the tested items after they were seized.
125 S.W.3d at 929-30. In Scott, the Western District held the State did not establish a sufficient chain of custody for
items offered into evidence where, inter alia, there was no testimony as to what the officer who collected the
evidence did with the items after they were seized. 647 S.W.2d at 604-05, 607-08.
36
the evidence officer, rather than from Detective Brockmeyer who actually seized the evidence.

We disagree. While the lack of testimony from Detective Brockmeyer could be considered an

alleged weakness or gap in the chain of custody which could be a proper subject of cross-

examination, any weakness or gaps in the chain of custody do not render evidence inadmissible

but instead are only factual issues for the jury to consider in assessing the weight of the evidence.

See Pennell, 399 S.W.3d at 91; State v. Patterson, 824 S.W.2d 117, 121 (Mo. App. E.D. 1992);

State v. Reed, 811 S.W.2d 50, 55 (Mo. App. S.D. 1991).

Defendant also argues the State failed to provide a reasonable assurance that the cheese

wrapper was in substantially the same condition when tested and admitted into evidence as it was

when it was originally seized because when the wrapper was tested and admitted into evidence, it

contained fingerprint powder which was not present on the wrapper when it was seized at the

crime scene. Any discrepancies between the condition of an exhibit when it was originally

seized and when it was tested at the lab and admitted into evidence do not render evidence

inadmissible but instead are considered to be a proper subject of cross-examination and raise

factual issues for the jury to consider in assessing the weight of the evidence. See id. In this

case, Officer Simpson testified fingerprint powder is “exactly what [he would] expect to see” on

an item which has been processed for fingerprints. In addition, the DNA expert who analyzed

the cheese wrapper for DNA testified that the fingerprint powder would not have affected the

subsequent DNA testing. We find this testimony provided a reasonable assurance that the cheese

wrapper was in substantially the same condition when tested and admitted into evidence as it was

when it was originally seized, and the fingerprint powder did not affect the reliability of the

DNA testing on the wrapper. We also find that any evidence or inferences to the contrary were

factual issues for the jury to consider in assessing the weight to be given to the cheese wrapper.

See Patterson, 824 S.W.2d at 121 (similarly finding).

37
 Based on the foregoing, we hold the State established a sufficient chain of custody for the

cheese wrapper, and the trial court did not abuse its discretion in admitting the wrapper into

evidence. Point three is denied.

c. The Stocking

We now turn to Defendant’s fourth point on appeal, which involves whether the State

established a sufficient chain of custody for the admission of the stocking.

i. Evidence Adduced at Trial

The following evidence relating to the chain of custody of the stocking was adduced at

trial. Officer Ron Bextermueller testified he was one of the officers who was dispatched to

Victim’s house on the day she was found murdered (November 4, 1984) and he remained outside

the house. While Officer Bextermueller was near the back of Victim’s property by an alley, he

saw a stocking lying on the ground. Officer Bextermueller testified he stayed with the stocking

until it was seized by either Officer Rich Tiemann or Detective Brockmeyer. As previously

stated, Detective Brockmeyer was deceased by the time of Defendant’s trial, and therefore, he

was not available to testify. Officer Bextermueller testified that the stocking which was offered

into evidence at trial was consistent with the one seized as evidence.

The evidence envelope containing the stocking stated it was found near the alley and the

bag had Detective Brockmeyer’s signature and handwriting on it, which indicated he was the

officer who picked up the stocking. After reviewing the evidence envelope, Officer

Bextermueller testified at trial that Detective Brockmeyer would have been the officer who

seized the stocking and put it in the envelope. However, Officer Bextermueller admitted he had

stated in an earlier deposition that although he had to have been present when the stocking was

seized, he could not specifically recall being present or if he watched Detective Brockmeyer

place the stocking into the evidence envelope.

38
 Evidence receipts were kept in a locked file in Officer Morie’s office, and the evidence

itself was maintained in the locked evidence area. An evidence receipt for the stocking contains

signatures of Detective Brockmeyer and Officer Morie, showed the stocking was deposited in the

evidence room on November 5, 1984, Officer Morie took it to a crime lab later in November

1984, and it was returned to the evidence locker in September 1985. Subsequently, the stocking

was taken to St. Charles County Sherriff’s Department for DNA testing, and testing performed in

2011 revealed the presence of a mixture of DNA consistent with Victim’s and Defendant’s

brother Cecil’s DNA. The probability of someone besides Cecil in the general Caucasian

population having the same DNA profile was 1 in 6.17 million.

ii. Defendant’s Arguments and Analysis

Defendant argues the State failed to provide a reasonable assurance that the stocking was

the same item Officer Bextermueller observed at the crime scene because, (1) he did not testify

he actually observed Detective Brockmeyer collect the stocking from the crime scene; and (2)

the State presented no evidence that Detective Brockmeyer collected the stocking from the crime

scene. We disagree.

In this case, Officer Bextermueller testified he stayed with the stocking until it was seized

by either Officer Tiemann or Detective Brockmeyer, other evidence and testimony adduced at

trial including the evidence receipt indicated Detective Brockmeyer was the officer who seized

the evidence, the stocking was received into evidence by Officer Morie the day after it was

seized, and Officer Bextermueller testified that the stocking being offered into evidence at trial

39
was consistent with the one seized as evidence. 23 We find this testimony provided the trial court

with a reasonable assurance that the stocking offered into evidence was the same stocking seized.

Any evidence or inferences to the contrary which allegedly indicate a weakness in the chain of

custody – whether from Officer Bextermueller’s deposition testimony, the fact that Detective

Brockmeyer was unavailable to testify at trial, or otherwise – were factual issues for the jury to

consider in assessing the weight to be given to the stocking and do not render the stocking

inadmissible. See Pennell, 399 S.W.3d at 91; Patterson, 824 S.W.2d at 121; Reed, 811 S.W.2d

at 55. Based on the foregoing, we hold the State established a sufficient chain of custody for the

stocking, and the trial court did not abuse its discretion in admitting the stocking into evidence.

Point four is denied.

III. CONCLUSION

The trial court’s judgment is reversed and the cause is remanded for a new trial for

second-degree felony murder and for further proceedings in accordance with our opinion.

ROBERT M. CLAYTON III, Presiding Judge

Lawrence E. Mooney, J., and
James M. Dowd, J., concur.

23
Because Officer Bextermueller testified that, inter alia, the stocking being offered into evidence at trial was
consistent with the one seized as evidence, and because the evidence receipt specifically showed the stocking at
issue was received by Officer Morie the day after it was seized, this case can be distinguished from Bode, 125
S.W.3d 924 and Scott, 647 S.W.2d 601, two cases relied on by Defendant in this point and in point three. In Bode,
the Western District held the State did not establish a sufficient chain of custody for a lab report offered into
evidence where, inter alia, apparently the only testimony presented by the State regarding the condition of the tested
items was from the person who tested the items. 125 S.W.3d at 929-30. In Scott, the Western District held the State
did not establish a sufficient chain of custody for items offered into evidence at trial where, inter alia, (1) an officer
testified only that the items were merely similar in appearance to those seized; (2) there was no evidence anyone had
any contact with the items two weeks after they were seized; and (3) an inventory report and narrative account by
the officer who allegedly seized the items did not “ma[k]e any mention whatever” of the seized items at issue in the
case. 647 S.W.2d at 603-08.
40