In the 

Missouri Court of Appeals

Western District

STATE OF MISSOURI,

Respondent,

v.

BRANDON J. NAYLOR,

Appellant.

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WD78208

OPINION FILED:

NOVEMBER 22, 2016

Appeal from the Circuit Court of Jackson County, Missouri

The Honorable Charles H. McKenzie, Judge

Before Division II: Lisa White Hardwick, Presiding Judge, Karen King Mitchell, Judge, 

Anthony Rex Gabbert, Judge

Brandon J. Naylor appeals from a judgment entered upon a jury verdict convicting him of 

first-degree burglary and third-degree assault, for which he was sentenced as a persistent 

offender to a total of fourteen years’ imprisonment. He contends that the circuit court abused its 

discretion in overruling his motion to suppress the victim’s in-court and out-of-court 

identifications, and in excluding the testimony of an expert in eyewitness identification. We 

affirm. 

Factual Background

The facts, as relevant to Naylor’s points on appeal, are that on June 11, 2013, just after 

8:40 p.m., the victim, J.S., had just put her two-year-old son to bed, turned off the main light in 
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the living room, and was starting to watch a movie. A man whom J.S. had never seen before 

then walked into her home through the unlocked front door. J.S. initially thought it was her 

husband arriving home and when she realized it was not her husband, J.S. jumped up and told the 

man to get out. She then struggled with the man, knocking over a speaker to block the 

entranceway to her son’s room. The man hit her in the face during the scuffle, leaving bruising 

that lasted for a couple of weeks. J.S. grabbed a fireplace poker and struck the man in the back 

with it causing his glasses to fall off. As he leaned over to get his glasses, J.S. hit him again and

the man then exited J.S.’s residence. J.S. testified that she was face to face with this individual 

for at least a couple of minutes. A twenty dollar bill that J.S. had recently received from 

babysitting and that was laying on top of J.S.’s entertainment center was missing. J.S. testified 

that she had previously received self-defense, police, and rape prevention training, and this 

training contributed to the defensive manner in which she handled the situation.

The man left through the front door, on foot. Once J.S. was sure that he had left, she ran 

to her son’s room to calm her son down. During the fray J.S. heard him in his bedroom saying, 

“Mommy, it’s okay. It’s okay. It just fell over. Mommy, it’s okay.” J.S. then called 911. J.S. 

described the intruder to the dispatcher as a white male with “lightish” brown hair, 

approximately 5’11”, wearing khaki shorts and a black t-shirt. When asked by the dispatcher if 

she could identify the assailant she stated, “Yes.” Dispatch notified area police of the home 

invasion, describing the assailant and the location of the intrusion. Soon thereafter Officer Mark 

Showman and Officer Marcus Brooker of the Independence Police Department arrived at J.S.’s 

home to investigate the incident. A police dashboard camera shows officers responding to J.S.’s 

residence while there is still daylight outside.
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Officer Joseph Hand was on patrol that evening and heard dispatch’s notification 

regarding the intrusion; he was approximately one block away from J.S.’s residence when he 

observed Naylor walking down the street. Hand stopped to talk to Naylor because he “exactly 

matched the description of the suspect.” A dashboard camera from Hand’s patrol car captured

Hand’s interaction with Naylor. Naylor was wearing khaki shorts, a black jersey-type shirt with 

red numbers on it, and glasses. When Hand explained that he had stopped Naylor because he 

matched the description of a suspect in a reported burglary, Naylor pulled the front of his shirt 

out and said, “I guarantee they won’t say what I was wearing.” Although Hand never told 

Naylor where the burglary occurred, Naylor commented that “It couldn’t have been me, the 

house was too far away.” Hand relayed to dispatch that he had stopped a man closely fitting the 

suspect’s description, but that the black shirt was a “jersey” type shirt with red numbers. 

When police arrived at J.S.’s residence, J.S. repeated the description she had given the 

911 dispatcher, but also told the responding officers that the intruder wore eyeglasses and that his 

black shirt had holes in it. Dashboard camera audio captures this exchange. Officers asked J.S. 

if she recalled if the shirt had any red numbers or lettering on it; J.S. did not recall any. Officers 

asked J.S. if she could identify the intruder and she immediately said, “Yes.” In the audio police 

can be heard discussing between themselves that a potential suspect had been detained, and J.S. 

can be heard talking with her child. Police then asked J.S., “Is there someone you can call to 

watch the little one while we go look at him?” J.S. responded, “Do you have somebody in

custody?” A police officer states, “Uh, possibly. Um, someone has, uh, some shorts and a, he 

has a different shirt on as well, but just in case, you know, he took off his shirt or something.” A 

different officer states, “He’s got on a black jersey, but it’s got like the numbering, we just want 

to see if it’s possible.” The other officer then states, “You never know, people often change 
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clothes real fast so ....” Showman and Brooker then informed Hand that they were going to 

bring J.S. to Hand’s location to view Naylor. Hand, two other officers, and Naylor waited in 

front of Hand’s patrol car for J.S. to arrive.

As officers were about to transport J.S. to where Hand had Naylor detained, the police 

dashboard camera shows what appears to be J.S.’s husband arriving home. Officers informed the 

man that a home invasion had occurred at his residence and J.S. then described the situation to 

him. Officers then told J.S. that they were going to put her in the back of the patrol car and drive 

to the location where the suspect was, stating, “that way he doesn’t see you, I know he knows 

who you are but ....” J.S.’s husband then asked, “You guys have the person then?” The officers 

replied, “Possibly” and followed that up with, “we don’t know, we are going to see if she can 

identify him and ....” Officers then transported J.S. a few blocks away to where Hand had Naylor 

detained. 

Naylor was standing without restraints in front of a police car when the patrol car 

containing J.S. pulled up. Officers parked the car containing J.S. approximately seventy feet 

from where Naylor was located; they parked on the opposite side of 23rd street which is a fourlane road with a center turn lane. Even before the patrol car stopped, J.S. stated, “That’s him.” 

She said that she was “a hundred percent sure” of her identification.

Later that evening, J.S. recalled that the assailant had a couple of tattoos; one was a

detailed cross located on one of his arms, and the other was a star located on one of his legs. J.S.

testified at trial that she recalled the tattoos when she was lying in bed the night of the attack and 

she kept seeing the intruder over and over in her mind. The following day she notified a 

detective of her recollection. At trial, J.S. identified Naylor as the man who invaded her home 

and assaulted her. She also identified cross and star tattoos on Naylor as the tattoos she observed 
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the night of the crime. The court allowed this testimony over Naylor’s objection that the 

procedure leading to J.S.’s identification of Naylor was impermissibly suggestive. The court 

found that the pretrial identification procedure was not impermissibly suggestive nor was the 

identification unreliable.

Point I

In Naylor’s first point on appeal he contends that the circuit court abused its discretion in 

overruling his Motion to Suppress the victim’s in-court and out-of-court identification of him, 

and in admitting over objection the identification at trial, because the identification was the result 

of an unnecessarily suggestive police procedure which created a substantial risk of 

misidentification. He argues that he was prejudiced because, without the identifications, there 

was insufficient evidence to convict him of the charged offenses.

“We review a trial court’s decision to grant or deny a motion to suppress to determine if 

there was substantial evidence to support the decision, and will only reverse if the trial court’s 

ruling was clearly erroneous.” State v. Lewis, 431 S.W.3d 7, 13 (Mo. App. 2014). “[W]e will 

reverse admission of testimony only if the trial court abused its discretion.” State v. Morgan, 480 

S.W.3d 349, 351 (Mo. App. 2015). We consider the evidence presented at both the suppression 

hearing and at trial to determine whether sufficient evidence supports the trial court’s denial of 

the motion to suppress. State v. Gaw, 285 S.W.3d 318, 319 (Mo. banc 2009). “[W]e view the 

entirety of the record before us in the light most favorable to the trial court’s ruling on the motion 

to suppress[.]” State v. Ruff, 360 S.W.3d 880, 885 (Mo. App. 2012). 

“Identification testimony is admissible unless the pretrial identification procedure was 

unnecessarily suggestive and the suggestive procedure made the identification unreliable.” State 

v. Middleton, 995 S.W.2d 443, 453 (Mo. banc 1999). “However, unless we find the identification 
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procedure to have been impermissibly suggestive, we need not examine the identification’s 

reliability.” Cothran v. State, 436 S.W. 3d 247, 251 (Mo. App. 2014). “Identification testimony 

is only subject to exclusion when the procedures used were so suggestive that they created a very 

substantial likelihood of irreparable misidentification.” Id. (internal quotation marks and citation 

omitted). “[A]n identification procedure is unduly suggestive if the identification occurs because 

of the procedure or by police action and not because of the witness’s recall.” Id. 

“Missouri courts have recognized that allowing the victim to see the suspect at the scene 

of the crime or at the scene of the arrest is an approved procedure.” State v. Nelson, 334 S.W.3d 

189, 193 (Mo. App. 2011). The shorter the length of time between the crime and when a witness 

to the crime can potentially identify a suspect increases the reliability of the identification. Id. at 

194. “Only where the witness made the identification as a response to the suggestions or 

encouragement of the police, rather than on his own observation and visual recollection of the 

defendant’s appearance will this procedure be deemed unduly suggestive.” Id. at 193-194. “It is 

not improper for police to inform a victim that they have a suspect that the victim may be able to 

identify.” Id. at 194. 

Here, Naylor contends that the identification procedure was impermissibly suggestive 

because, prior to J.S. being shown Naylor, officers informed J.S. that they had someone in 

custody, that the individual had a different shirt on, that the individual could have changed 

clothes, and that J.S. would be transported in the back of the patrol car so that she would not be 

seen but, “I know he knows who you are.” Naylor argues that the officers thereby told J.S. that 

they had the correct individual in custody. 

The trial court had the opportunity to hear and see the exchange on the police dashboard 

camera and reach the conclusions it did. From the video it does not appear from listening to the 
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officer’s statements accompanied with the inflection in the officers’ voices when making those 

statements that the officers were suggesting to J.S. that the man they had detained was the same 

man as described by J.S. The officers used words such as “possibly” and “we don’t know” with

regard to whether they actually had J.S.’s assailant in custody. It also appears from listening to 

the audio that the officer’s statement, “I know he knows who you are,” was an explanation to J.S. 

that, if the man detained happened to be the assailant, he would not see her in the back seat of the

patrol car, although the true assailant obviously already knew what J.S. looked like. Therefore,

in reviewing the record in the light most favorable to the trial court’s ruling and in disregarding 

all contrary inferences, it is not apparent that suggestions or encouragement by police prompted 

J.S.’s identification, or that the procedures used were so suggestive that they created a very 

substantial likelihood of irreparable misidentification.1 However, even if the statements could be 

considered impermissibly suggestive, we find J.S.’s identification of Naylor reliable.

The five factors of identification reliability that are typically reviewed if police 

procedures are found suggestive include the opportunity of the witness to view the criminal 

during the crime, the witness’s degree of attention, the accuracy of the witness’s prior 

description, the witness’s degree of certainty, and the length of time between the crime and the 

confrontation. Cothran v. State, 436 S.W.3d 247, 252 (Mo. App. 2014). 

Here, the record reflects that J.S. was face to face with the intruder for approximately two 

minutes. J.S. engaged in a physical struggle with the intruder, observed him as he left her home, 

observed the direction in which he traveled, and watched long enough to ensure that he was not 

 

1We, however, do not condone the officers’ discussion of the identifying characteristics of the suspect prior 

to bringing the victim to observe and attempt to determine if they had the proper person in custody. We would urge 

more caution in the future so there is no question as to the validity of the identification.
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coming back. When asked, J.S. expressed confidence to the 911 dispatcher that she could 

identify the intruder. J.S.’s confidence did not waiver when a responding officer also asked J.S. 

if she could identify the intruder. J.S.’s description of the intruder immediately after the crime 

very closely matched Naylor’s appearance when he was detained a few blocks from J.S.’s home. 

J.S. described the intruder as being a white male with short “lightish” brown hair, glasses, khaki 

shorts, and a black t-shirt. Naylor, a white male with short brown hair, was wearing glasses, 

khaki shorts, and a black shirt with red numbering/lettering when he was detained.2 Although 

J.S. described the intruder’s shirt as only a black t-shirt with holes, and the shirt Naylor was 

wearing was a black jersey-type shirt with jersey holes and red numbers, this discrepancy alone 

does not prove the identification unreliable. Where the identification is found reliable and 

admissible after consideration of the five factors of identification reliability, identification 

discrepancies become matters for the jury to weigh and decide.

3

 See State v. Winters, 900 

S.W.2d 636, 641 (Mo. App. 1995). J.S. expressed certainty in her identification. Immediately 

upon seeing Naylor, and without any commentary or prompting from police, J.S. identified 

Naylor as the assailant. When J.S. had the opportunity to observe Naylor, only minutes had 

elapsed since the home invasion. 

 

2Although Naylor suggests inaccuracy in J.S.’s recollection regarding the height of the assailant due to her 

telling the 911 dispatcher that he was approximately 5’11” in height, but responding officers testified that she stated 

that he was 5’5 to 5’7”, there was no evidence at trial from which we can confirm the accuracy or inaccuracy of 

either of these descriptions. The defense asked Officer Showman if Naylor appeared to be 5’5” to 5’7” and 

Showman responded, “Probably the top end of five-seven.” Showman was asked his own height which he reported 

to be 5’7 1⁄2”. Showman was asked to step down from the witness stand and Naylor was asked to stand up, 

apparently so that the jury could compare the heights of the two. We have no way of knowing the inferences that 

were drawn from this comparison and, while the defense pointed out that two varying heights were reported, the 

defense never argued to the jury that J.S.’s height description was inaccurate. The aforementioned was before the 

jury, however, when the jury drew its own conclusions as to the reliability of the identification.

3Here, Naylor argued to the jury that J.S.’s identification was based on police suggestiveness and was 

unreliable due to discrepancies with J.S.’s recollection of the assailant compared with Naylor’s appearance when 

detained. 
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We find that all five factors of identification reliability support the reliability of J.S.’s 

identification. The record supports that J.S.’s identification of Naylor as the assailant was based 

not on police suggestiveness, but on J.S.’s personal and recent face to face interaction with 

Naylor. Naylor’s first point on appeal is denied.

Point II

In Naylor’s second point on appeal he contends that the circuit court abused its discretion 

in excluding the testimony of an expert in the field of eyewitness identification. He argues that 

the testimony was admissible and relevant to his defense, would not have invaded the province 

of the jury, and would have assisted the jury in its evaluation of the evidence. Naylor contends 

that the exclusion prejudiced him because, had the jury heard the testimony, it would not have 

found him guilty. We find no abuse of discretion.

“The decision to admit or exclude expert testimony is in the sound discretion of the trial 

court.” State v. Jones, 322 S.W.3d 141, 144 (Mo. App. 2010). “The trial court abuses its 

discretion when a ruling is clearly against the logic of the circumstances and is so arbitrary and 

unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. If 

reasonable people could differ as to whether the trial court’s ruling was justifiable, there has been 

no abuse of discretion. Id. The admissibility of expert testimony is measured in terms of 

whether the testimony will be helpful to the jury and should address a subject about which the 

jurors lack experience or knowledge. Id. (internal quotation marks and citation omitted). The 

expert’s testimony should not detract from the relevant issues. Id.

Here, Naylor sought to introduce the testimony of Dr. John Gambon, an expert in the 

field of eyewitness identification. The State moved to exclude this evidence and the court 

sustained the motion. At trial and after the State rested, Naylor again sought to have Gambon
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testify. The court disallowed the testimony but allowed Naylor to make an offer of proof. The 

court’s order denying the testimony stated, in part:

The Defendant seeks to have Dr. Gambon testify as an expert regarding 

factors that he believes have been shown through empirical research and studies 

to affect the reliability of an eyewitness identification. He would not be testifying 

about the particular identification in this case or commenting on the credibility of 

[J.S.]. The Court heard testimony from Dr. Gambon regarding the testimony he 

would provide in this case. ...

The Court finds that the purpose of Dr. Gambon’s testimony is to attempt 

to provide testimony that may have the affect [sic] of casting doubt on the 

credibility of the expected testimony from [J.S.] regarding the identification of the 

Defendant both to the police and during the hearing and trial. The Court does not 

believe that the admission of such testimony would aid the jury.

Our Missouri Supreme Court concluded in State v. Lawhorn, 762 S.W.2d 820, 823 (Mo. 

banc 1988), and State v. Whitmill, 780 S.W.2d 45 (Mo. banc 1989), that it is within the trial 

court’s sound discretion to determine whether expert eyewitness identification testimony would 

aid the jury. This conclusion was premised on the belief that jurors may rely on their own 

experience to reach a judgment on what weight to give eyewitness evidence and “that such 

matters are within the general realm of common experience of members of a jury and can be 

evaluated without an expert’s assistance.” Id. Lawhorn and Whitmill further indicate that, while 

eyewitness identifications have been found unreliable in some instances, a defendant’s rights at 

trial are still protected without expert eyewitness identification evidence where various other 

safeguards are provided, such as cross-examination of the identifying witnesses, making 

eyewitness identification concerns known to the jury in opening and closing statements, and by 

instructions given the jury regarding factors to consider in determining the reliability of an 

identification. Whitmill, 780 S.W.2d at 47 (citing Lawhorn, 762 S.W.2d at 823). 
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Here, Naylor does not argue that his trial was devoid of these “safeguards” but, rather, 

argues that, because many years have passed since Lawhorn and Whitmill were decided, 

scientific study and research now reveals that jurors do not understand the problems associated 

with eyewitness identification and suggests that Lawhorn and Whitmill should no longer be 

followed. Naylor cites cases from other jurisdictions to support his position.

Missouri appellate courts are constitutionally bound to follow the last controlling 

decision of Missouri’s Supreme Court, regardless of how many years have passed since that 

decision was rendered. See State v. Brightman, 388 S.W.3d 192, 199 (Mo. App. 2012). 

Consequently, we find that the circuit court did not abuse its discretion in denying testimony by 

Naylor’s eyewitness identification expert. Point two is denied.

Conclusion

We conclude, therefore, that the circuit court did not abuse its discretion in overruling 

Naylor’s motion to suppress the victim’s in-court and out-of-court identifications, or in excluding 

the testimony of Naylor’s eyewitness identification expert. The circuit court’s judgment is 

affirmed.

Anthony Rex Gabbert, Judge

All concur.