STATE OF MISSOURI,                        )
                                          )
       Plaintiff-Respondent,              )
                                          )
vs.                                       )      No. SD33876
                                          )
SCOTT ALAN ST. GEORGE,                    )      Filed: August 4, 2016
                                          )
       Defendant-Appellant.               )

      APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                      Honorable Thomas E. Mountjoy

AFFIRMED

       Scott Alan St. George ("Defendant") appeals from his convictions of one

count of first-degree burglary, one count of second-degree burglary, two counts of

stealing, one count of identity theft, and one count of forgery. Defendant argues

the trial court erred in granting the State's motion to consolidate the charges into

one case for trial. Defendant's argument is without merit, and his convictions

and sentences are affirmed.
                       Factual and Procedural Background

        Katy St. George ("Katy")1 has six children, one of whom is Defendant. Katy

has owned St. George's Donut Shop since 1971. At the time of the events giving

rise to this case, Defendant had no role in the doughnut business, and Katy and

Defendant no longer had any type of relationship. Defendant did not have

permission to be at Katy's home nor on the business premises of the doughnut

shop.

        On August 30, 2012, Katy closed the doughnut shop in the afternoon. As

was her custom, she left approximately $250 in the cash register to start the next

morning's business. When she returned to the shop the next morning, the

security bar across the back door was missing, and the register was empty.

Surveillance footage from the night before showed Defendant walking through

the store and rummaging in the cash register.

        On September 8, 2012, at about six a.m., Defendant's brother Anthony St.

George ("Anthony") visited Katy at the shop and told Katy he believed Defendant

was going to break into her home. Katy went home and encountered Defendant

running down the hall towards her from the direction of her bedroom.

Approximately $150 was missing from her bedroom, and the sliding door to the

patio had been taken off its rails.

        Later in 2012, Defendant obtained a photo ID with his own picture but

with the identifying information of his brother, Kevin St. George ("Kevin").

During November and December, 2012, Defendant used the fake photo ID to



1First names are used because many of the people involved in this case have the same last
name. No disrespect is intended.

                                           2
cash several checks on Kevin's personal account. In all, Defendant obtained

$19,600 from Kevin's personal checking account.

       For these events, Defendant was charged with six criminal counts in three

cases. The prosecution filed a motion to join the cases for trial because the cases

all involved offenses against Defendant's mother, Katy, or his brother, Kevin, and

the offenses all occurred within the same four-month time period. After a

hearing at which both parties presented argument, the trial court granted the

motion.

       Defendant had a jury trial on January 13, 2015, through January 15, 2015.

The jury found Defendant guilty as charged. This appeal followed.

                                    Discussion

       In his sole point on appeal, Defendant argues the trial court erred in

granting the motion to consolidate because:

       the burglary and stealing against Katy . . . were improperly joined
       with the burglary and stealing against St. George's Donuts . . . and
       the identity theft and forgery against Kevin . . . in that the charges
       related to Katy and the Donut Shop were not part of the same
       transaction, a common scheme or plan, or of the same or similar
       character as the charges related to Kevin[.]

Defendant's argument is without merit.

       Appellate review of questions of joinder and severance involves a two-step

process. State v. Smith, 389 S.W.3d 194, 208 (Mo. App. S.D. 2012). The first

question is whether joinder was proper. Id. The question of whether a trial court

properly ordered joinder of offenses is a matter of law. Id. "If joinder was not

proper, then prejudice is presumed from a joint trial and severance of the charges

is mandatory." Id. However, "[o]nce a finding is made that joinder is proper, the


                                       3
trial court's decision will not be reversed absent a showing of both an abuse of

discretion and a clear showing of prejudice." Id.

        "There is, strictly speaking, no constitutional right to be tried for one

offense at a time." State v. Holliday, 231 S.W.3d 287, 293 (Mo. App. W.D.

2007). Additionally, "joinder is the rule rather than the exception." State v.

Harris, 705 S.W.2d 544, 550 (Mo. App. E.D. 1986). "Liberal joinder of offenses

is favored in Missouri as a means of achieving judicial economy when joinder can

be accomplished consistent with lawful considerations." Holliday, 231 S.W.3d

at 293.

        "Joinder of offenses is governed by Rule 23.05 and [S]ection 545.140.2."2

Id. Under Rule 23.05:

        All offenses that are of the same or similar character or based
        on two or more acts that are part of the same transaction or
        on two or more acts or transactions that are connected or
        that constitute parts of a common scheme or plan may be
        charged in the same indictment or information in separate
        counts.

Rule 23.05. Under Section 545.140:

        two or more offenses may be charged in the same indictment
        or information in a separate count for each offense if the
        offenses charged, whether felonies or misdemeanors or
        infractions, or any combination thereof, are of the same or
        similar character or are based on the same act or transaction
        or on two or more acts or transactions connected together or
        constituting parts of a common scheme or plan.

§ 545.140.2. "[J]oinder is appropriate where any of the Section 545.140.2 or Rule

23.05 criteria exist." State v. McDonald, 321 S.W.3d 313, 318 (Mo. App. S.D.

2010) (quoting State v. Love, 293 S.W.3d 471, 475-76 (Mo. App. E.D. 2009));


2All rule references are to Missouri Court Rules (2016). All statutory references are to
RSMo (2000).

                                             4
see also State v. McKinney, 314 S.W.3d 339, 341 (Mo. banc 2010); State v.

Bechhold, 65 S.W.3d 591, 595 (Mo. App. S.D. 2002).

       Joinder was appropriate in this case under the criteria that the crimes

were "of the same or similar character." In this context, the term "similar" has

been defined to mean "[n]early corresponding; resembling in many respects;

somewhat alike; have general likeness." Harris, 705 S.W.2d at 549 (emphasis

added) (quoting U.S. v. Werner, 620 F.2d 922, 926 (2nd Cir. 1980)).

Moreover, "requiring 'too' precise an identity between the character of the

offenses 'would fail to give effect to the word "similar" succeeding the word

"same" and thus violate an elementary rule of statutory construction.'" Id. That

is, "identical tactics are not required." State v. Nichols, 200 S.W.3d 115, 119

(Mo. App. W.D. 2006). "The similarities may relate to the types of offenses

committed, the types of victims targeted, the location where the offenses

occurred, and the proximity in time." Id. (emphasis added). In several Missouri

cases, appellate courts have found that counts were properly joined as similar in

character where the crimes were of the same general category and the crime

victims were all members of the defendant's family. Holliday, 231 S.W.3d at

295; State v. Kelley, 953 S.W.2d 73, 79 (Mo. App. S.D. 1997).

       Here, each of the crimes had a financial motive. The first four offenses—

two counts of burglary and two counts of theft—stemmed from Defendant's acts

of breaking into his mother's business and his mother's home to steal money.

The last two offenses—identity theft and forgery—involved Defendant obtaining

large sums of money using a fake photo ID involving his brother's identity.

Furthermore, the crimes all involved victims who were closely related to

                                      5
Defendant. The first pair of crimes victimized the business owned by Defendant's

mother, the second pair of crimes victimized Defendant's mother herself, and the

final pair of crimes victimized Defendant's brother. There was no error in joining

the offenses because they were all of a similar nature and they were all committed

against similar family victims.

       Next, the Court must consider whether the trial court abused its discretion

in failing to sever the charges. Smith, 389 S.W.3d at 208. A defendant must

"make 'a particularized showing of substantial prejudice' in order to obtain a

severance." McDonald, 321 S.W.3d at 320 (quoting Rule 24.07(b)). However,

here, Defendant relies on the presumption of prejudice arising from improper

joinder. In such cases, the appellate court may dispense with analysis of the issue

of prejudice. See Nichols, 200 S.W.3d at 119 (finding a claim of severance

abandoned and declining to review it where the defendant did not "offer any

support in his argument section regarding severance").

                                    Decision

       Defendant's convictions and sentences are affirmed.



MARY W. SHEFFIELD, C.J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCURS

JEFFREY W. BATES, J. – CONCURS




                                     6
