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State v. Johnson

Court of Appeals of Missouri, Western District, Third Division

March 5, 2019


          APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY The Honorable Jeff Harris, Judge.

          Before Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick and Anthony Rex Gabbert, Judges.

          Lisa white Hardwick, Judge.

         Joanthony Johnson was convicted by a jury of two counts of first-degree sodomy, two counts of first-degree rape, and one count of attempted first-degree sexual abuse and sentenced to 100 years in prison. He brings five points on appeal. In Points I-III, he contends the circuit court erred in admitting evidence from his cell phone because the search of the phone was invalid under the Fourth Amendment and the compulsion of his phone's passcode violated his Fifth Amendment privilege against self-incrimination. In Point IV, Johnson argues that the court erred in denying his motion for improper joinder and severance of the charges. In Point V, he asserts that the evidence was insufficient to support his conviction for attempted first-degree sexual abuse. For reasons explained herein, we affirm.

         Factual and Procedural History

         On the night of August 21, 2015, C.N., a college student, went with her roommates to The FieldHouse bar in Columbia. C.N. got separated from her friends. The next memory she had was of smoking "dabs," which are a condensed form of THC more potent than leaf marijuana, in the kitchen of Johnson's apartment. C.N. remembered feeling sick to her stomach afterwards and holding onto the toilet in Johnson's bathroom. Her head was spinning, and she thought she was going to vomit. Johnson came into the bathroom, grabbed C.N.'s arm, told her she was fine, and tried to get her out of the bathroom. She repeatedly told him that she did not feel well and wanted to be left alone, but he continued to grab her. Johnson took C.N. into the bedroom. C.N.'s next memory was of waking up, face down, on the bed the next morning. Johnson was behind her, and she was unsure of what was happening. After this, C.N. occasionally saw Johnson out at The FieldHouse and Roxy's, another Columbia bar. She did not confront Johnson or report the incident to the police because she was unsure whether Johnson had done anything to her that night.

         A few weeks later, on September 13, 2015, K.B., then nineteen years old, went to Willie's bar in Columbia with her friends, SC and J.L. K.B. and S.C. met Johnson while sitting at the bar, and they drank shots with him. They decided to accompany Johnson and his friend back to Johnson's apartment so they could buy some Xanax and continue drinking. At the apartment, Johnson offered K.B. and S.C. cocaine. After the two women each snorted a line, they went to the bathroom together and questioned whether the substance Johnson had given them was actually cocaine.

         Johnson, K.B., and S.C. went to another apartment to buy the Xanax. On the way to the apartment, SC started experiencing "really weird visuals." S.C. saw a rainbow grid, her vision became blurry, and she felt groggy. After buying the Xanax, Johnson gave K.B. and S.C. each a pill. K.B. took her pill, but S.C. did not take hers. The three went back to Johnson's apartment, where S.C. retrieved K.B.'s shoes and purse. When K.B. and S.C. announced their intention to leave at that time, Johnson insisted on accompanying them to the entrance of the apartment building. As they walked down the hallway, K.B. started "freaking out." She began crying, screaming, and crawling back down the hallway toward Johnson's apartment. Johnson took K.B. into his apartment, while S.C. went downstairs to try to find their friend J.L., who was attempting to call her.

         By the time S.C. arrived in the lobby of Johnson's apartment building, her memory was getting fuzzy, and she felt like she was losing control of her muscles. She tried to go back upstairs to Johnson's apartment to find K.B., but she could not find the door to the stairwell. S.C. began rehearsing facts like her name and birthday and K.B.'s name and birthday. Finally, SC decided to sit in the lobby, where a couple found her. She gave her phone to the couple and asked them to call J.L. and direct him to the building. The couple did so and also called the police.

         When J.L. arrived, he went upstairs and began knocking on apartment doors before he was eventually directed to Johnson's apartment. J.L. knocked loudly and "assertively" on Johnson's door for ten to fifteen minutes. Johnson did not answer the door, even though J.L. could hear music or a television inside the apartment. J.L. explained who he was and said that he was looking for his friend, K.B. Johnson still did not answer the door. J.L. went downstairs and gave the police Johnson's apartment number. When the police went to Johnson's apartment, the police had to knock on his door for "a very long time" before Johnson finally came to the door.

         When the police entered the apartment, Johnson unlocked the door to his bedroom. K.B. was lying on Johnson's bed. Because K.B. did not respond to the officers and appeared "heavily intoxicated" and "high on something," they called for an ambulance. K.B. was wearing camo pants and a baggy white T-shirt. The T-shirt was not on her properly, as only one arm was through a sleeve. The other arm was draped over the shirt, which caused K.B.'s armpit and the underside of her breast to be exposed when she tried to sit up. K.B.'s clothes were piled in a corner and appeared to have been peeled off of her, because her underwear was still inside of her pants. Johnson told the officer that he had removed K.B.'s clothes because she had vomited "everywhere" on them, but the officer did not see any vomit on her clothes. The officers found a jar of Vaseline on the table next to the bed.

         The officers recovered a baggie from Johnson's living room that was labeled "4-ACO-DMT fumarate," which is a substance associated with hallucinogenic mushrooms. The baggie was also marked, "Not for human consumption." Residue from white powder was nearby and appeared to have been lined up with a credit card. The officers collected the powder, but the powder blew away when it was taken outside for testing. Due to an officer's mistakenly coding his report of the incident as a non-criminal matter, the police did not follow up or investigate the incident as a criminal matter.

         A couple of months later, on November 19, 2015, T.T., then twenty-one years old, went to Roxy's bar and saw Johnson there. T.T. had first met Johnson in late 2014 or early 2015.[1] When T.T. encountered Johnson again at Roxy's on the evening of November 19, 2015, Johnson went to the bar multiple times and bought a shot and mixed drinks for her. T.T. was not with Johnson when he got the drinks and could not see if he put anything in them. Johnson invited T.T. and her friends to a party at his place after the bar closed. After having three drinks, T.T. went outside the bar to smoke a cigarette. T.T.'s next memory was tripping while walking with Johnson near a parking garage. Johnson held on to T.T. and told her, "Come on." The next thing T.T. remembered was waking up at around 6:30 or 7:00 a.m. in Johnson's bed. She was lying on her stomach and wearing nothing but her bra and underwear. T.T. had no memory of taking off her clothes. T.T. asked Johnson if there had been a party, and he said no one but her had come to the apartment. T.T. felt "very weird, weird and groggy," but she did not feel hungover. Although she had consumed alcohol in the past, she had never before blacked out from drinking. Her body was sore, and her neck felt as though someone had choked her. T.T. found a bruise on the back of her thigh that looked like the imprint of three fingers. T.T. did not report the incident to the police because she was not sure what had happened.

         Two and a half months later, in the early morning hours of February 4, 2016, M.V., then seventeen years old, met Johnson outside of The FieldHouse. M.V. and her friend, H.J., had been drinking at the bar using fake IDs. M.V. had also snorted cocaine while inside the bar. Outside the bar, Johnson offered to provide M.V. and H.J. some dabs at his apartment. They agreed to go and went with him and two other women to Johnson's apartment.

         Once inside the apartment, M.V. and H.J. smoked the dabs that Johnson gave them. Johnson also mixed drinks for M.V. The two other women eventually left, and M.V. and H. J. fell asleep on Johnson's couch. M.V. got up during the night and tried to find something to eat. She ate three chocolate peanut butter balls from a bag that she found in Johnson's refrigerator. M.V.'s next memory was of waking up and feeling hazy. She thought someone had spiked her drink, and she tried to get H.J. to wake up but was unsuccessful. M.V. passed out again. When she woke up, she felt lethargic and totally out of it.

         At that point, Johnson came out of his bedroom. M.V. told him that she wanted to go to the doctor. She repeatedly told him that someone had put something in her drink. Johnson told her she was fine, grabbed her by her waist, and walked her into his bedroom. M.V. knew that Johnson was going to take advantage of her because she was not in control of her body.

         Johnson laid M.V. down on his bed and removed her spandex shorts. He then climbed on top of her and had vaginal intercourse with her. M.V. had no ability to resist him because she felt so weak and could not do anything other than make unhappy grunting noises. Johnson appeared to be turned on by those noises and went faster. According to M.V., the effects that she was feeling were worse than she had experienced when she had taken acid on prior occasions. She seized, twitched, and hit herself, and she also kept passing out and regaining consciousness. M.V. passed out after Johnson had finished raping her the first time. When she woke up, Johnson grabbed her, put her face down on the bed, and had intercourse with her again. This time, M.V. was able to tell him to stop and was crying. Johnson seemed to enjoy her crying and went faster. M.V. continued to seize, twitch, and pass in and out of consciousness.

         M.V. and H.J. left Johnson's apartment sometime after 7:00 a.m. M.V. told H.J. that she thought Johnson had raped her. As H.J. drove her home, M.V. felt lethargic and was still seizing, twitching, and hitting herself. H.J. called M.V.'s father and told him that someone had raped M.V. M.V.'s father took her to a hospital as soon as she got home. At the hospital, M.V. was disoriented, had trouble concentrating during the examination, and frequently lost her train of thought mid-sentence. She was groggy and swaying back and forth, her speech was slurred, and she fell asleep in the middle of a conversation with a sheriff's deputy.

         Johnson's DNA was found in semen recovered from M.V.'s cervix and anus. Testing of M.V.'s blood showed the presence of alcohol, THC, cocaine, and Psilocin, which is a substance commonly found in hallucinogenic mushrooms.

         The court issued a search warrant for Johnson's apartment on February 19, 2016. The warrant was executed on February 22, 2016, and an iPhone was then seized from the apartment. The iPhone could not be searched at that time because it was locked.

         Meanwhile, the State charged Johnson with one count of first-degree rape for knowingly having sexual intercourse with M.V., a person who was incapable of consent. The State also charged him with two counts of felony possession of a controlled substance, specifically, more than five grams of marijuana and hallucinogenic candies or dabs, with the intent to distribute.

         While the charges against Johnson for the incident involving M.V. were pending, the police were able to search Johnson's iPhone on October 28, 2016. On Johnson's phone, the police found three videos showing him having anal intercourse with C.N. and two videos showing Johnson having oral sex and vaginal intercourse with T.T. Neither C.N. nor T.T. made any sounds during the videotaped sexual encounters. The police showed C.N. and T.T. the videos, and the two women said that they did not consent to any sexual contact with Johnson on those occasions. Johnson's phone also contained texts that Johnson sent to friends during and after the incident with M.V. and H.J. In one of the texts, which Johnson sent when he first arrived at his apartment with M.V. and H.J., Johnson stated that he was "about to finally get some pussy." In another text that Johnson sent a few hours after M.V. left his apartment, Johnson said that he "[m]ade a porno." Additionally, Johnson's phone contained a brief video of M.V. and H.J. sleeping in his apartment.

         The State subsequently filed a five-count amended indictment against Johnson. Count I alleged that Johnson committed first-degree sodomy on August 22, 2015, by knowingly having deviate sexual intercourse with C.N. Count II alleged that Johnson committed attempted first-degree sexual abuse on September 14, 2015, by removing K.B.'s clothing, which was a substantial step toward the commission of the crime of first-degree sexual abuse and was done for the purpose of committing such abuse. Count III alleged that Johnson committed first-degree sodomy on November 20, 2015, by knowingly having deviate sexual intercourse with T.T. Count IV alleged that Johnson committed first-degree rape on November 20, 2015, by knowingly having sexual intercourse with T.T. Lastly, Count V alleged that Johnson committed first-degree rape on February 4, 2016, by knowingly having sexual intercourse with M.V. Counts I, III, IV, and V alleged that the victims were incapable of consent because they were in a drug-induced state and were known by Johnson to be unable to make a reasonable judgment as to the nature or harmfulness of the sexual acts.

         Trial was held in April 2017. Johnson testified in his defense that C.N., T.T., and M.V. were conscious during the sexual acts and that all of the sexual encounters were consensual. Johnson admitted that, in addition to videotaping himself having sex with C.N. and T.T., he videotaped himself having sex with M.V. He did not save the video of M.V. to his phone, however, but instead sent it to a friend via Snapchat. Johnson admitted that none of the women were aware he was videotaping them. Johnson denied attempting to sexually abuse K.B. He first testified on direct examination that he helped K.B. take off her clothes and put on his clothes because she had urinated on herself. On cross-examination, however, he acknowledged that he told the police that he had taken off K.B.'s clothing by himself because she had vomited on them. Johnson also testified that he was "very knowledgeable" about the different forms of hallucinogenic mushrooms and their effects. He admitted that he had mixed cocaine with the 4-ACO-DMT fumarate in the plastic bag that police found in his apartment on the night of the incident with K.B.

         The jury found Johnson guilty on all charges. The court sentenced him as a persistent misdemeanor offender to four years in prison for attempted sexual abuse and twenty-five years in prison for each of the two rape and two sodomy counts. The sentences on the rape and sodomy counts were ordered to run consecutively to each other and concurrently to the attempted sexual abuse sentence, for a total of 100 years. Johnson appeals.


         I. Fourth and Fifth Amendment Challenges to Cell Phone Evidence

         Johnson's first three points on appeal concern the circuit court's denial of his motion to suppress evidence obtained from his seized cell phone. In Point I, he contends the search warrant was invalid under the Fourth Amendment because it was not supported by probable cause, was not sufficiently particular, was overbroad, and was stale when the search of the phone was executed. In Point II, he asserts he did not consent to the search of his phone. In Point III, Johnson argues the court violated his Fifth Amendment privilege against self-incrimination when it compelled him to enter his passcode to unlock the phone so that the State could examine it.

         Our review of the circuit court's ruling on a motion to suppress is limited to determining whether there is substantial evidence to support the court's decision. State v. Maples, 551 S.W.3d 634, 643 (Mo. App. 2018). We will reverse the ruling only if we find that it is clearly erroneous. Id. A ruling is clearly erroneous "if this court is left with a definite and firm belief a mistake has been made." Id. (internal citations and quotations omitted). In making this determination, we review the evidence in the light most favorable to the ruling, disregarding any contrary evidence and inferences. Id. While we defer to the circuit court's factual findings, we review issues of law de novo. State v. Gaw, 285 S.W.3d 318, 320 (Mo. banc 2009).

         A. Facts Surrounding Search of Cell Phone

         The police seized Johnson's cell phone from his apartment under a search warrant issued on February 19, 2016. The warrant authorized police to search and seize:

Illegal controlled substances, and drug paraphernalia. All bedding materials (i.e. sheets, mattress pads, comforters, blankets, pillow cases etc). All cell phones, electronic tablets, computers, digital media storage devices (hard drives, USB devices), (and to conduct an off-premises examination/search of said devices for all data/software as defined by RSMO 556.063) pertaining to the offense [of] Distribution Deliver and Manufacture of a Controlled Substance RSMO 195.211, and Rape in the First Degree RSMO 566.030.

         The warrant further provided:

This Court grants permission to use whatever data analysis techniques appear necessary to locate and retrieve the evidence described herein, including conducting an off-site examination. This Court further grants permission to continue the forensic examination beyond the time at which the return of the search warrant is made to this court.

         In the warrant, the court stated that, "from the sworn allegations of said complaint and from the supporting written affidavits filed therewith [this court] has found that there is probable cause to believe the allegations of the complaint to be true and probable cause for the issuance of a search warrant herein."

         The affidavit accompanying and incorporated into the warrant was completed by Detective Patrick Corcoran of the Columbia Police Department. In the affidavit, Corcoran described in detail the alleged incidents involving K.B. And M.V. He also described an alleged incident involving another woman, M.S. Approximately two months before the incident with K.B., M.S. filed a complaint alleging that she had gone to Johnson's apartment to buy marijuana and Xanax from him. M.S. told the police that she used the ...

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