Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Cause No.
1322-CR03424-01 Honorable Margaret Mary Neill
Colleen Dolan, Judge.
Davis (Defendant) appeals his conviction of one count of
forcible rape under RSMo § 566.030, claiming (1)
that the DNA evidence in his case should have been suppressed
as the product of an illegal search under the Fourth
Amendment and (2) that there was insufficient evidence to
convict him of rape beyond a reasonable doubt because the
victim's testimony was conflicting. We affirm the
judgment of the trial court.
Factual and Procedural Background
April 30, 2008, the victim in this case (A.S.) snuck into the
basement of 4942 Hurley Street, home to Defendant,
Defendant's mother, and Defendant's aunt, Kim
Latcher, with whom A.S. was in a relationship. A.S. testified
that Defendant's mother (Kim Latcher's sister) did
not like her being in the home, so Defendant and Ms. Latcher
helped her hide in the basement where Defendant slept. A.S.
stated that while she was hiding in the basement Defendant
asked her for sex and she refused. She said Defendant then
pulled her pants down, pushed her onto her back on the futon,
and held her down by her shoulders. She stated she was
menstruating at the time and Defendant pulled out her tampon,
put a condom on, and had sex with her against her will.
Because Defendant's mother did not approve of her being
in the house, A.S. did not cry out for help. Afterwards, she
ran upstairs to Ms. Latcher and told her what happened. Ms.
Latcher called the police and then left the house with A.S.,
waiting with her on a stoop two doors down from the home.
the police arrived, A.S. told them she had been raped by
Defendant and was taken to the hospital where a rape kit was
prepared and seized as evidence. The examining nurse
testified from her notes made on May 1, 2008 that A.S. told
her the sex took place from behind and her pants were
unbuttoned when it began. Prior to this, A.S. testified on
cross-examination that she did not remember telling any of
the medical personnel that the sex took place from behind.
When the defense attorney asked her why she could not
remember what she told the examining nurse, A.S. said it was
because the hospital interview took place more than seven
years prior, when she was only 15 years old. A.S. stated that
after being examined at the hospital, she ran away to avoid
being placed in a group home. She did not have contact with
the police again until 2013 when a new investigator was
assigned to her case. A.S. explained at trial that she did not
contact the police because she was young and did not know any
better, but she assisted them with their investigation once
they initiated contact with her.
London Brown (Officer Brown), one of the officers dispatched
to the scene, testified at trial that A.S. told him she had
been raped by Defendant on the futon in the basement of the
home and Defendant used a condom. Officer Brown testified Ms.
Latcher told him she lived in the home, gave the police
permission to enter the house, and guided them to the
basement door. The police went downstairs into the basement,
arrested Defendant, and read him his Miranda rights.
After this, Defendant stated "I didn't touch
her" and "the bitch is lying." Officer Brown
called for an evidence technician because he saw a comforter
on the bed and a condom in open view inside a trash bag at
the foot of the bed. Officer Jamie Simpher (Officer Simpher)
was the evidence technician who responded to the home. She
testified that she took several photographs of the scene,
including one of the trash bag's contents. She stated
that she did not move anything when she took a photo of the
condom in the trash bag. DNA testing revealed the unknown
male DNA found on the condom matched the sample taken from
Defendant in a buccal swab. A DNA analyst testified that
A.S.'s DNA was also present on the condom.
trial, Defendant stated that he did have sex with A.S. but it
was consensual and initiated by her. He testified that when
he told the police he did not touch A.S. he meant he did not
rape her. Defendant was found guilty following a bench trial
on November 12, 2015, and he was sentenced to eighteen years
on January 14, 2016. Defendant filed his notice of appeal on
January 24, 2016.
trial court did not err in denying Defendant's motion to
suppress physical evidence because the police testified they
had permission to enter the home and the evidence was in
first point on appeal, Defendant argues the trial court erred
in admitting the evidence seized by the police from his
bedroom because it violated his Fourth Amendment rights.
Defendant argues there was no valid exception to the warrant
requirement because there was no consent, no exigent
circumstances, and the evidence was not in plain view. An
appellate court will not reverse a trial court's ruling
on a motion to suppress unless the court's decision was
clearly erroneous. State v. Ivy, 455 S.W.3d 13, 17
(Mo. App. E.D. 2014). We consider the facts and evidence in
the light most favorable to the trial court's ruling and
disregard any contrary evidence and adverse inferences.
Id. at 18. "We review the court's findings
only to see if they are supported by substantial
evidence." State v. Ford, 445 S.W.3d 113, 118
(Mo. App. E.D. 2014).
contrast, appellate courts review alleged Fourth Amendment
violations de novo. State v. Plunkett, 473
S.W.3d 166, 175 (Mo. App. W.D. 2015). "The Fourth
Amendment generally prohibits the warrantless entry of a
person's home, whether to make an arrest or to search for
specific objects." Illinois v. Rodriguez, 497
U.S. 177, 181 (1990). "The prohibition does not apply,
however, to situations in which voluntary consent has been
obtained… from a third party who possesses common
authority over the premises." Id; See also
State v. Blair, 638 S.W.2d 739, 750 (Mo. banc 1982).
Additionally, if officers reasonably believe that a person
has the authority to consent to the entry into a residence,
the warrantless entry is lawful. Rodriguez, 497 U.S.
at 188-89; See also State v. Smith, 90 S.W.3d 132,
141 (Mo. App. W.D. 2002). Defendant argues on appeal that Ms.
Latcher did not reside in the home because A.S. stated she
and Ms. Latcher would "come and go." However,
Officer Brown testified that Ms. Latcher told him she lived
there, he believed her statement, and she gave him consent to
enter the home, and showed him to the basement. We consider
the evidence in the light most favorable to the trial
court's ruling and disregard any contrary evidence and
adverse inferences. State v. Ivy, 455 S.W.3d at 18.
Officer Brown's testimony indicates he reasonably
believed Ms. Latcher had common authority to give the police
consent to enter the home, thus his warrantless entry did not
violate Defendant's Fourth Amendment rights. We find
there was sufficient evidence to support the trial
court's ruling. State v. Brown, 18 S.W.3d 482,
484 (Mo. App. E.D. 2000).
found the police received permission to enter the basement,
we turn to Defendant's argument that the evidence seized
was the result of an unlawful search. Evidence in plain view
may be seized without a warrant when the police have probable
cause to believe it is evidence of a crime. Arizona v.
Hicks, 480 U.S. 321, 326 (1987). "The plain view
doctrine is one of the recognized exceptions to the warrant
requirement imposed by the Fourth Amendment to the United
States Constitution." State v. Franklin, 144
S.W.3d 355, 359 (Mo. App. S.D. 2004). "This doctrine
applies when: (1) the officer is lawfully located in a place
from which the object can be plainly seen; (2) the ...