                   In the Missouri Court of Appeals
                           Eastern District
                                                 DIVISION TWO

STATE OF MISSOURI,                                         )    No. ED104046
                                                           )
           Respondent,                                     )
                                                           )    Appeal from the Circuit Court
                                                           )    of the City of St. Louis
           vs.                                             )    Cause No. 1322-CR03424-01
                                                           )
RANDELL DAVIS,                                             )    Honorable Margaret Mary Neill
                                                           )
           Appellant.                                      )    Filed: December 6, 2016

                                                 I.       Introduction

           Randell Davis (Defendant) appeals his conviction of one count of forcible rape under

RSMo § 566.0301, 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.

                                  II.      Factual and Procedural Background

           On 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.2 A.S. testified that Defendant’s mother (Kim Latcher’s sister) did not


1
    All references are to Mo. Rev. Stat. Cum. Supp. 2006.
2
    At the time of this event, A.S. was 15 years old, Kim Latcher was 17, and Defendant was 18.

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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.

         When 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.3 A.S. explained at trial that




3
 In 2013, Detective Jason Sapienza (Detective Sapienza) was assigned to the Sex Crimes Unit as a detective. A.S.
had not met with the prosecutor at that point, and protocol for the department was to assign a detective to follow up
with a victim and determine if they wished to meet with the prosecutor. Detective Sapienza contacted A.S. and
determined she was interested in assisting the police in the prosecution of this case.


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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.

       Officer 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.

       At 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.




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                                            III.    Discussion

a. The 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 plain view.
         In his 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).

         In 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

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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).

        Having 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 officer has a lawful right of access to the object itself; and (3) the

incriminating character of the object is immediately apparent to the seizing officer.” Id.

        The police seized two pieces of evidence in this case: one condom and one comforter.

Defendant objected to the trial court’s admission of this evidence, as well as two photographs

showing the condom in the trash bag. Both Officer Brown and Officer Simpher testified the

evidence seized was in “plain view.” Officer Simpher stated she took photographs of the condom

inside the trash bag and did not move anything prior to taking the photographs. Officer Brown

testified he could see the condom in the trash bag and identified it in one of the photographs

taken by Officer Simpher. Officer Brown knew A.S. had alleged Defendant raped her in the



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basement while wearing a condom, so the condom was readily apparent as evidence of the crime.

He also believed there might have been DNA evidence on the comforter on top of the futon, as

A.S. had told him she had been raped on the futon. Officer Simpher testified it is important to

seize biological evidence in a rape or sexual assault case when it clearly has evidentiary value.

Consequently, the trial court did not err in denying Defendant’s motion to suppress. Point one is

denied.

b. The trial court did not err in finding Defendant guilty of forcible rape because there
   was sufficient evidence upon which a reasonable fact finder could determine Defendant
   was guilty under § 566.030.
           In his second point on appeal, Defendant argues there was insufficient evidence for a

reasonable trier of fact to find him guilty beyond a reasonable doubt because A.S.’s testimony to

emergency responders was conflicting with her testimony at trial. “The appellate court’s role is

limited to determining whether the State presented sufficient evidence from which a trier of fact

could have reasonably found the defendant guilty beyond a reasonable doubt.” State v. Varnell,

316 S.W.3d 510, 513 (Mo. App. W.D. 2010) (citing State v. Johnson, 244 S.W.3d 144, 152 (Mo.

banc 2008)). An appellate court reviews the sufficiency of the evidence in a court-tried criminal

case using the same standard we apply in a jury-tried case. State v. Livingston-Rivard, 461

S.W.3d 463, 466 (Mo. App. S.D. 2015); Rule 27.01.4 The credibility of witnesses and the weight

of testimony are the province of the fact-finder who “may believe all, some, or none of the

testimony of a witness when considered with the facts, circumstances and other testimony in the

case.” State v. Crawford, 68 S.W.3d 406, 408 (Mo. banc 2002).

           “A person commits the crime of forcible rape if such person has sexual intercourse with

another person by the use of forcible compulsion.” § 566.030.1. “Forcible compulsion means



4
    All references are to Missouri Supreme Court Rules 2015.

                                                          6
either: (a) Physical force that overcomes reasonable resistance; or (b) A threat, express or

implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of

such person or another person.” § 556.061(12). Appellate courts look at the totality of the

circumstances to determine if the force used was sufficient to overcome reasonable resistance,

including: “the relative ages of the victim and accused; the atmosphere and setting of the

incident; the extent to which the accused was in a position of authority, domination, and control

over the victim; and whether the victim was under duress.” State v. Vandevere, 175 S.W.3d 107,

108 (Mo. banc 2005).

        In the present case, A.S. testified that Defendant “raped” her when she was 15 years old.

She stated Defendant was larger than her, had more muscle, and she was physically unable to

push him off and move away. Physical force is any force applied to the body that is sufficient to

overcome reasonable resistance. Id. at 109. “[T]he law does not require or expect utmost

resistance to a sexual assault when it appears that such resistance would be futile or would

provoke a more serious injury.” Id. Reasonable resistance is only what is suitable under the facts

of a case. Id. A.S. stated she told Defendant that she did not want to have sex with him and

claimed she was physically unable to push Defendant off of her and get away. She testified that

she did not cry out for help because she knew Defendant’s mother did not want her in the home.

Under these facts, a fact-finder could reasonably find Defendant had sexual intercourse with A.S.

by the use of forcible compulsion.

       During cross-examination, defense counsel asked A.S. why she told medical workers that

Defendant was behind her during the sexual intercourse, as opposed to facing her. A.S. testified

she did not remember saying that due to the length of time that had passed since she was

interviewed at the hospital. Throughout her testimony, A.S. repeatedly stated Defendant “raped”



                                                 7
her and she denied having consensual sex with him at any time. She testified that Defendant held

her down by her shoulders, removed her tampon, put on a condom, and then forced his penis into

her vagina. Based on the foregoing, we hold there was sufficient evidence from which a trier of

fact could reasonably find Defendant committed forcible rape beyond a reasonable doubt. Point

two is denied.

                                        IV.     Conclusion

       We affirm the judgment of the trial court.



                                              _______________________________
                                              Colleen Dolan, Judge

Sherri B. Sullivan, P.J., concur.
Roy L. Richter, J., concur.




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