                In the Missouri Court of Appeals
                        Eastern District
                                          DIVISION FOUR

STATE OF MISSOURI,                                )      No. ED100065
                                                  )
          Respondent,                             )      Appeal from the Circuit Court
                                                  )      of St. Louis County
          vs.                                     )      10SL-CR08418-01
                                                  )
DERRICK WILSON,                                   )      Honorable Michael D. Burton
                                                  )
          Appellant.                              )      Filed: November 25, 2014

          Derrick Wilson appeals the judgment entered upon a jury verdict convicting him of two

counts of first-degree statutory sodomy and one count of first-degree child molestation. We

affirm.

                                     I.      BACKGROUND

A.        Evidence Adduced at Trial

          Wilson was charged with two counts of first-degree statutory sodomy and one count of

first-degree child molestation. The following evidence was adduced at Wilson’s jury trial.

          In September 2010, Wilson was living in an apartment with his girlfriend and two of her

children, eleven-year-old B.S. and her nine-year-old brother. The children’s older sister,

seventeen-year-old A.S., would also sometimes stay the night in the apartment.

          On the evening of September 19, 2010, all three children were sleeping in the same

bedroom. A.S. and her brother were in the bed, and B.S. was on the floor. At one point, A.S.
woke up and saw Wilson’s head in between B.S.’s legs and heard Wilson licking and moaning.

One of B.S.’s legs was up in the air and the other leg was down, and Wilson’s hands were

“underneath [B.S.’s] back, butt area.”

       A.S. did not immediately know what to do, and she stayed in bed for about five minutes.

When A.S. got out of bed, Wilson jumped up and said “good morning.” Later that night, A.S.

went to her grandmother’s house, A.S. told her grandmother what she had seen, and the police

were contacted.

       Wilson was arrested at about 11:00 p.m. on the night of the incident and was

subsequently interviewed by police. During the interview, Wilson admitted he touched B.S.’s

breasts. Wilson also admitted he placed his finger inside B.S.’s vagina and placed his tongue on

B.S.’s vagina on two separate occasions, including once when B.S. returned from a trip to

Florida.

       On the day following the incident, B.S. was examined at the hospital and a sexual assault

kit was collected. The exam revealed that B.S. had a sexually transmitted disease that could be

transferred by oral sex. Additionally, a DNA analysis showed that male DNA consistent with

Wilson’s DNA was on B.S.’s underwear.

       B.S. was interviewed at the Children’s Advocacy Center. During the interview, B.S.

stated that Wilson touched her on her “private” between her legs and on her chest on two

occasions, and that he placed his finger inside her. B.S. also stated that she felt Wilson’s head

moving between her legs when she was asleep.

       B.S. testified at trial that Wilson touched her chest. She also testified that Wilson put his

fingers inside her vagina and put his mouth on her vagina on two separate occasions, once when

she came back from a trip to Florida and again in September 2010.



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B.     Relevant Procedural Posture Including Wilson’s Motion to Suppress

       Prior to Wilson’s jury trial, he filed a motion to suppress his statements to the police.

The following evidence regarding Wilson’s interview with police was adduced at the hearing on

his motion to suppress and at trial.

       Detective David Rohlfing testified that at approximately 4:00 a.m. on September 20,

2014, he began his interview of Wilson by asking him general background questions designed to

“build a rapport.” Specifically, Detective Rohlfing asked Wilson his date of birth, the spelling of

his name, his Social Security number, where he worked, where he lived, and what kind of car he

drove. The questions did not elicit any incriminating information from Wilson.

       Three minutes after asking Wilson general background questions, at 4:03 a.m., Detective

Rohlfing read Wilson his Miranda rights. Wilson verbally indicated that he understood his

Miranda rights and also signed a form at 4:04 a.m. acknowledging that he understood his rights.

Detective Rohlfing testified that Wilson’s Miranda rights were given before he asked Wilson

any incriminating or “guilt-seeking questions” or “any questions about the crime[s].”

       After Wilson indicated he understood his Miranda rights, Detective Rohlfing questioned

Wilson about whether he had any sexual contact with B.S., but Wilson denied that any improper

contact had occurred. Detective Rohlfing exited the interview room, and Captain Timothy Fagan

went into the interview room and began questioning Wilson. Wilson eventually admitted to

Captain Fagan that he touched B.S.’s breasts, and Wilson admitted he placed his finger inside

B.S.’s vagina and placed his tongue on B.S.’s vagina on two separate occasions.

       After the hearing on Wilson’s motion to suppress, the trial court entered an order denying

the motion. In its order, the trial court found that “[w]ithin three minutes of the interview

(essentially after making introductions), Rohlfing read [Wilson] his Miranda rights. Without



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hesitation, [Wilson] agreed to waive his rights, signing the standard Miranda waiver form that

Rohlfing provided to him.” The trial court also found that “[t]here was nothing done that was

coercive” and that Wilson’s statements to the police were “given voluntarily,” after Wilson

understood and waived his Miranda rights.

       Defense counsel objected when Wilson’s statements to police were introduced at trial,

and the trial court overruled the objections. After the close of all the evidence, the jury found

Wilson guilty of two counts of first-degree statutory sodomy and one count of first-degree child

molestation. Wilson filed a motion for new trial which asserted the trial court erred in denying

his motion to suppress. The trial court denied Wilson’s motion for new trial and sentenced

Wilson to a total of seventeen years’ imprisonment. This appeal followed.

                                       II.     DISCUSSION

       In Wilson’s sole point on appeal, he asserts the trial court erred in denying his motion to

suppress and admitting his statements to the police wherein he confessed to the charged criminal

conduct. We disagree.

       Our review of a trial court’s denial of a motion to suppress is limited to a determination

of whether the decision is supported by substantial evidence. State v. Byrd, 389 S.W.3d 702, 707

(Mo. App. E.D. 2012). In making this determination, we consider the evidence presented at both

the suppression hearing and at trial, and we view the facts and reasonable inferences therefrom in

the light most favorable to the trial court’s ruling. Id. This Court will reverse the trial court’s

ruling only if it is clearly erroneous. Id. Additionally, while we defer to the trial court’s

determinations of witness credibility and the trial court’s findings of fact, we review questions of

law de novo. State v. Nylon, 311 S.W.3d 869, 884 (Mo. App. E.D. 2010).




                                                  4
        Pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), a person in police custody

must be warned prior to an interrogation that he has the right to remain silent, that anything he

says could be used against him in a court of law, that he has the right to an attorney, and that if

he cannot afford an attorney one will be appointed for him (“Miranda warnings”). In Missouri,

“custodial interrogation” is defined as “questioning initiated by law enforcement officers after a

person has been taken into custody.” State v. Collings, 2014 WL 4086313 at *8 (Mo. banc 2014)

(quotation omitted). “Statements obtained during a custodial interrogation not preceded by

Miranda warnings are subject to suppression at trial.” Id. When Miranda warnings are given,

an accused may knowingly and intelligently waive his rights and agree to answer questions or

make a statement. Miranda, 384 U.S. at 479. To prove that a defendant’s statements to the

police are admissible at trial, the State must show, (1) the challenged statements complied with

Miranda’s guidelines; and (2) the statements were voluntarily made. Collings, 2014 WL

4086313 at *8.

        In this case, Wilson argues the trial court erred in admitting his post-Miranda statements

to the police because Detective Rohlfing did not give Wilson Miranda warnings at the beginning

of the interview, before the detective asked Wilson general background questions in an effort to

build a rapport. To support his argument, Wilson relies on Missouri v. Seibert, 542 U.S. 600

(2004). For the reasons set forth below, we find that Seibert is inapplicable to the facts of this

case.

        In Seibert, the defendant was arrested for murder and taken to the police station where

she was questioned about the crime for thirty to forty minutes. Id. at 604-05. The officer

deliberately withheld the Miranda warnings during this initial stage of questioning, and the

defendant made incriminating statements regarding her involvement in the murder. Id. at 605-



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06. The officer gave the defendant a twenty-minute break, and when he returned to the interview

room, he turned on a tape recorder, advised the defendant of the Miranda warnings, obtained a

waiver, and resumed questioning. Id. at 605. The officer confronted the defendant with her pre-

warning incriminating statements, and the defendant repeated the incriminating information

during the second half of the interrogation. Id. at 605-06. The defendant was charged with first-

degree murder and filed a motion to suppress her pre-Miranda warning and post-Miranda

warning statements. Id. at 605. At the suppression hearing, the officer testified he made a

“conscious decision” to withhold the Miranda warnings and that he used an interrogation

technique of “question first, then give the warnings, and then repeat the question ‘until I get the

answer that she’s already provided once.’” Id. at 605-06.

       At issue on appeal was the admissibility of defendant’s post-Miranda warning

statements, and a majority of the U.S. Supreme Court held that the statements were inadmissible.

Id. at 603, 617, 618, 622. Relevant portions of the Supreme Court’s Seibert decision consisted

of, (1) a plurality opinion authored by Justice Souter and joined by Justice Stevens, Justice

Ginsburg, and Justice Breyer; and (2) an opinion concurring in the result authored by Justice

Kennedy. Id. at 603-17, 618-22. Both the plurality and Justice Kennedy’s concurrence focused

on the fact that, in Seibert, a “two-step interrogation” took place, i.e., “a police protocol for

custodial interrogation that calls for giving no warnings of the right to remain silent and counsel

until interrogation has produced a confession . . . then issuing Miranda warnings . . . then leading

the suspect to cover the same ground a second time.” See id.; Collings, 2014 WL 4086313 at *9

(quoting Seibert, 542 U.S. at 604).




                                                   6
         Because Justice Kennedy’s concurrence in Seibert provided the narrowest rationale1 for

finding the defendant’s post-Miranda warning statements were inadmissible, the Missouri

Supreme Court adopted Justice Kennedy’s concurrence as the test Missouri Courts use to

determine “whether a ‘two-step interrogation’ has occurred, rendering repeated statements made

to police admissible.” Collings, 2014 WL 4086313 at *9; State v. Gaw, 285 S.W.3d 318, 323

(Mo. banc 2009). Pursuant to Justice Kennedy’s concurrence, “a confession is inadmissible

despite a belated Miranda warning where a ‘two-step interrogation technique was used in a

calculated way to undermine the Miranda warning[s].’” Gaw, 285 S.W.3d at 323 (quoting

Seibert, 542 U.S. at 622).

         In this case, a “two step interrogation,” as that term is defined by the U.S. and Missouri

Supreme Courts, was not used. Detective Rohlfing did not withhold the Miranda warnings until

Wilson confessed, then issue warnings, then lead Wilson to cover the same ground a second time

and have him repeat his incriminating statements. Instead, Detective Rohlfing began his

interview of Wilson by asking him general background questions (his date of birth, the spelling

of his name, his Social Security number, where he worked, where he lived, and what kind of car

he drove). These questions were designed to “build a rapport” and did not elicit any

incriminating information from Wilson. Three minutes after asking Wilson general background

questions, at 4:03 a.m., Detective Rohlfing read Wilson his Miranda rights. Wilson then waived

his rights, and subsequently confessed to involvement in the crimes. Because a two-step

interrogation process was not used, Seibert is inapplicable to the facts of this case. See State v.

Hughes, 272 S.W.3d 246, 255 (Mo. App. W.D. 2008) (similarly distinguishing Seibert, finding


1
  “[W]here a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five
Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” State v. Gaw, 285 S.W.3d 318, 322-23 (Mo. banc 2009) (quoting Marks v.
U.S., 430 U.S. 188, 193 (1977) (internal quotations omitted)).

                                                          7
that “[u]nlike Seibert . . . this is not a case where [the defendant] was questioned concerning the

circumstances of the offense, then advised of his rights and simply urged to repeat incriminating

statements he had previously made”).

       Because Seibert is inapplicable, we must determine the admissibility of Wilson’s post-

Miranda warning statements pursuant to the standard set forth in Oregon v. Elstad, 470 U.S. 298

(1985). Hughes, 272 S.W.3d at 256, 256 n. 7 (quoting Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring) (“[t]he admissibility of postwarning statements should continue to be governed by

the principles of Elstad unless the deliberate two-step strategy was employed”)). Elstad

examined the issue of “whether an initial failure of law enforcement officers to administer the

[Miranda warnings], without more, ‘taints’ subsequent admissions made after a suspect has been

fully advised of and has waived his Miranda rights.” 470 U.S. at 300. The U.S. Supreme Court

held that a suspect who has responded to unwarned yet uncoercive police questioning is not

thereby disabled from waiving his rights and confessing after he has been given the Miranda

warnings. Id. at 318. The Supreme Court reasoned:

       It is an unwarranted extension of Miranda to hold that a simple failure to
       administer the warnings, unaccompanied by any actual coercion or other
       circumstances calculated to undermine the suspect's ability to exercise his free
       will, so taints the investigatory process that a subsequent voluntary and informed
       waiver is ineffective for some indeterminate period. Though Miranda requires
       that the unwarned admission must be suppressed, the admissibility of any
       subsequent statement should turn in these circumstances solely on whether it is
       knowingly and voluntarily made.
                                                ...

       The relevant inquiry is whether, in fact, the second statement was [] voluntarily
       made. As in any such inquiry, the finder of fact must examine the surrounding
       circumstances and the entire course of police conduct with respect to the suspect
       in evaluating the voluntariness of his statements. The fact that a suspect chooses
       to speak after being informed of his rights is, of course, highly probative.

Id. at 309, 318.


                                                 8
       In this case, Wilson only argues that the allegedly belated administration of the Miranda

warnings renders his subsequent statements inadmissible; Wilson makes no claim that he was

coerced into giving his post-Miranda warning statements or that his waiver of his Miranda rights

was anything other than knowing and voluntary. Moreover, in finding that Wilson’s post-

Miranda statements were admissible, the trial court found, “[t]here was nothing done that was

coercive” and that Wilson’s statements to the police were “given voluntarily,” after Wilson

understood and waived his Miranda rights. In the absence of any contrary argument by Wilson,

we find the trial court could properly conclude that Wilson’s post-Miranda warning statements

were knowingly and voluntarily made and therefore admissible under the Elstad analysis. See

Hughes, 272 S.W.3d at 255, 257 (finding no error under similar circumstances, including where

the officer failed to give the defendant the Miranda warnings at the outset of the interview in

order to build a rapport). Therefore, the trial court did not clearly err in denying Wilson’s

motion to suppress his statements to the police wherein he confessed to the charged criminal

conduct. Point denied.

                                     III.    CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROBERT M. CLAYTON III, JUDGE

Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.




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