State v. Brown

CLIFFORD H. AHRENS, Judge,

concurring in part and dissenting in part

I respectfully dissent from the majority opinion’s holding as to Count VI, burglary in the second degree, and would affirm the judgment of the trial court on that count. I concur with the majority opinion in all other respects.

Fr. Meyer testified at trial that the sacristy in a church is where the priests’ vestments, the chalices, the wine and the host are kept for mass. It is open only to a few people who are needed for a service. He stated that the sacristy is not open to the public, and that to get to the sacristy one has to go up into the sanctuary and into the altar area. It has a door that is normally locked, except on Saturdays when there are weddings or other ceremonies. Various marked keys were kept in a drawer in a counter in the sacristy, which included the keys found in the driver’s side door of the white car operated by the defendant.

Defendant argues that Fr. Meyer’s testimony that the sacristy is not open to the public is “conclusory” and that there were insufficient facts to prove that he or an accomplice would have known this, especially given that there was no evidence that there were any “no trespassing” signs or other signs to indicate that the sacristy was not open to the public. The case law on which Defendant relies does not require that there must be signs posted stating “No Trespassing” or “Employees Only” whenever a building has both public and private areas. Rather, they have held, in effect, it may or may not be evident that an area is open to the public depending on the circumstances of the particular case. State v. Weide, 775 S.W.2d 255 (Mo.App.1989), did not say that people might not know that a restaurant kitchen is not open to the public, but rather that it was not obvious that the door led to the restaurant kitchen; it was a reasonable possibility that a person, even while committing another felony, might find a restroom or another public portion of the restaurant behind the unmarked door.

In the present case, ordinary reasonable people would know that in a church, Catholic or otherwise, the area behind the church altar is not open to the public, but is rather supposed to be used by the clergy and by those assisting the clergy. At oral argument, the defendant’s appellate counsel conceded that it was a reasonable inference that the sacristy door was closed at the time of the theft. There is no plausible reason why the defendant, who was not a member of St. Peter’s and apparently not even Catholic, and was at St. Peter’s at a day and time when it was normally empty, would traverse the sanctuary, go through the altar area to a closed, apparently unmarked door, and expect that the room beyond was open to the public. Unlike Weide, there is no reasonable possibility that there was a public restroom or any other room open to the general public behind the altar through a closed door.

A church is a building that is partly open to the public with areas, such as the sacristy, that are not open to the public. The sacristy of a church is not a parking garage generally open to the public, nor is it generally located in an area that reasonable people would think is open to the public at large rather than just clergy and their assistants. Unlike the situation in State v. Richie, 376 S.W.3d 58 (Mo.App.2012), there was no sign positively indicating that the sacristy was open to the public.

The majority places great emphasis that there apparently is a second, exterior door to the sacristy that is unmarked, and which may have been unlocked at the time of the burglary, and that the evidence fails to establish how the defendant or an accomplice entered the sacristy, whether through the interior door or the exterior door. Accordingly, the majority concludes that the State failed to show that the defendant or an accomplice knowingly unlawfully entered the sacristy. We note that the defendant did not raise this two-door theory either at trial or anywhere in his brief as part of his point relied on or his supporting argument, or during oral argument before this Court, and the State had no opportunity to address this theory. However, even given this. theory, there was still sufficient circumstantial evidence to support the defendant’s conviction. Regarding the exterior door, the testimony indicates that it is at the rear of the church, and the photos admitted into evidence appear to confirm this. There is no sign identifying it as an entrance to the church. It is at the rear of the church, presumably as far away as could be possible from the main public entrance. No reasonable person would believe that an unmarked door at the rear of a church, far away from the main public entrance, would be open to the general public.

The majority’s holding would require all businesses and institutions that have space that is partially open to the public to post “Authorized Personnel Only” signs or the equivalent over every entrance to a nonpublic space that a person could access easily through a space open to the public, such as an unmarked storeroom that is behind a sales counter, or any exterior door such as the rear kitchen door in a restaurant or a stage door to a theater. There was sufficient circumstantial evidence to support the defendant’s conviction for burglary in the second degree on Count VI. I would affirm the judgment of the trial court as to Count VI and concur in the majority opinion in all other respects.