State of Missouri v. Joanthony Deaundre Johnson

576 S.W.3d 205

• Court: Missouri Court of Appeals
• Decided: March 5, 2019
• Docket: WD80945
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

STATE OF MISSOURI, ) Respondent, ) v. ) WD80945 ) JOANTHONY DEAUNDRE JOHNSON, ) Appellant. ) FILED: March 5, 2019

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY THE HONORABLE JEFF HARRIS, JUDGE

BEFORE DIVISION THREE: MARK D. PFEIFFER, PRESIDING JUDGE, LISA WHITE HARDWICK AND ANTHONY REX GABBERT, JUDGES

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, S.C. 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

2 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, S.C. 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, S.C. decided to sit in the lobby,

where a couple found her. She gave her phone to the couple and asked them to

3 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

4 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

1 During their earlier meeting, T.T. and a friend went to Johnson’s apartment, where T.T. and Johnson had consensual sex.

5 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,

6 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

7 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

8 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

9 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

10 to each other and concurrently to the attempted sexual abuse sentence, for a total

of 100 years. Johnson appeals.

ANALYSIS

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

11 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

12 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 substances while at his apartment

and that, afterwards, Johnson took advantage of her sexually. According to M.S.,

this happened to her multiple times.

After describing the alleged incidents involving K.B., M.V., and M.S.,

Corcoran then averred:

It is likely, based on this ongoing criminal history, Johnson has illegal controlled substances, paraphernalia, and the bedding used during the rape of M.V. stored at this address. It is also likely Johnson has[ ] cellular phones, digital media storage devices, computers, electronic tablets, which may be used in the procurement and distribution of controlled substances stored at this address.

From my training and experience, I know suspects use cellular phones, computers, and electronic tablets[ ] to store illegal content and carry out illegal activity, such as Felony Drug Possession RSMO 195.202, Distribution Deliver and Manufacture of a Controlled Substance RSMO 195.211. Based on M.V.’s description Johnson also used his phone to look up her condition during the sexual attack.

From my training and experience, I know that cellular phones, and electronic tablets, contain a multitude of electronic capabilities very similar to a computer. Some of the above listed devices have the ability to search the internet, obtain and send e mails, take photos, and access social media applications. They also have the ability to retain memory of captured items even after they are deleted. The information stored within these devices is perishable and can be unrecoverable as new items write over the deleted items. Much of

13 this information, including the deleted data, is available only through a forensic examination of the phone. From my training and experience I know that suspects often use cellular phones and other electronic devices to conduct illegal activities. These devices often store that information so that it can be accessed at a later time even when it has been deleted.

Police executed the warrant on February 22, 2016, and seized Johnson’s phone.

The phone could not be searched at that time because it was locked.

In March 2016, Johnson filed a motion to preserve electronic evidence and

to allow the defense’s expert to examine Johnson’s phone before the State

examined it. In the motion, Johnson asserted that his phone “might contain

exculpatory information” and that, “[i]f a minimally trained person attempts to

extract data from the cell phone, any exculpatory evidence could be destroyed.”

He requested that the court enter an order prohibiting the State from testing the

phone until after he had a chance to extract and examine the data on the phone.

The court granted Johnson’s motion. The parties agreed that both Johnson’s and

the State’s examination of the cell phone would “all be done at once.”

At the start of a pretrial conference on October 24, 2016, the parties again

discussed the cell phone examination, which had not yet occurred. The State

informed the court that its expert was planning to go to St. Louis that day to

observe the defense expert’s examination of the phone. The State said that its

expert believed that, based upon the type of cell phone and the type of analysis

that the defense’s expert was planning to perform, there was an “extreme

likelihood” that the contents of the phone would be “wiped clean,” meaning

14 erased, by the defense expert’s examination. The State advised that it was

planning to proceed to trial “with nothing from the phone,”2 but it wanted to inform

the court and the parties of the possibility that Johnson’s phone could be erased.

After discussing other matters during the same pretrial conference, the court

and the parties returned to discussing the cell phone examination. Defense counsel

explained that the reason there was a chance that the phone might be erased was

because law enforcement had attempted to enter several passcodes but was

unsuccessful in unlocking the phone, and any more attempts might cause the

phone to reset. Defense counsel stated that she had just spoken to her expert,

Greg Chatten, who told her that law enforcement was threatening to charge him

with destruction of evidence if he did the extraction that day and the phone reset.

Both the court and the State reassured defense counsel that Chatten would not be

charged with spoliation or destruction of evidence and that everyone understood

that the there was a possibility that Chatten’s examination of the phone might

cause it to reset.3 Chatten’s examination did not take place that day, however,

because defense counsel was concerned about the possible destruction of

evidence.

2 At this point, the only charges pending against Johnson were based upon the incident with M.V., as the police had not yet seen Johnson’s cell phone videos of C.N. and T.T. 3 The record indicates that, because Chatten did not have Johnson’s passcode at that time, he was planning to use a program that would essentially try several different passcodes on the phone until it got the right one. After ten failed passcode attempts, however, the phone would be erased and reset.

15 Instead, defense counsel requested that the State make the phone available

at the Boone County Jail so that Johnson could use his thumbprint to unlock the

phone for Chatten’s examination. The State agreed, so long as Johnson agreed to

use his thumbprint so the State’s expert could perform his examination. Defense

counsel stated that she had not talked to Johnson about using his thumbprint to

unlock the phone but that he had previously indicated that he would consent to

doing that.

Consequently, four days later, on October 28, 2016, Johnson, defense

counsel, Chatten, Corcoran, and Jeff Adams, who was a mobile forensic examiner

for the Columbia Police Department, met at the Boone County Jail to conduct the

examinations of Johnson’s cell phone.4 Adams understood that Johnson had

agreed to unlock the phone so that Chatten could examine the contents of the

phone and then Adams could examine the contents of the phone. Adams initially

asked Johnson to use his thumbprint to unlock the phone. Johnson’s attempt to

unlock the phone using his thumbprint failed, so he entered his passcode. Adams

watched as Johnson entered his passcode, and Adams wrote down Johnson’s

passcode. Chatten then downloaded the phone’s contents. Chatten’s download

took approximately ten minutes. During Chatten’s examination, the phone

4 Adams is trained and certified in using Cellebrite, a software and hardware tool that is used to obtain a forensic image, or copy, of the exact contents of a cell phone or mobile device. Cellebrite recovers all of the device’s “logical data,” including all text messages, phone calls, photographs, and videos. Adams could not examine the contents of Johnson’s phone when it was initially seized because, at that time, Cellebrite was unable to bypass the passcode on that particular model of iPhone.

16 automatically locked, but it did not prevent the defense’s download from being

completed. After Chatten’s examination was concluded, Adams asked Johnson to

reenter the passcode to unlock the phone so that he could perform the State’s

examination. When Johnson refused to reenter his passcode, Corcoran told him

that the State had a right to the evidence and that the State might seize Chatten’s

computer with the downloaded contents of Johnson’s phone. At that point, the

parties agreed to call the court.

During the phone conference with the court, the State asked the court for a

motion to compel Johnson to enter his passcode into the phone. In response,

defense counsel acknowledged that she and the State had agreed that, after

Chatten’s examination of the phone, the State would be able to do its examination.

Nevertheless, defense counsel argued that she made that agreement without

knowing that the phone would lock again and that Johnson would have to reenter

his passcode for Adams to perform his examination. When the court asked

defense counsel why, in light of the fact that defense counsel had already agreed

to allow the State to perform its examination after Chatten’s examination, it would

matter that Johnson would have to reenter his passcode to allow the State to do

so, defense counsel did not provide a reason. Finding that counsel for the State

and the defense had previously agreed that the State could examine the phone

following Chatten’s examination, the court granted the motion to compel Johnson

to enter his passcode to unlock the phone.

17 Johnson reentered his passcode, and Adams examined the phone. From the

examination, the State police found the three videos showing Johnson having anal

intercourse with C.N., the two videos showing Johnson having oral sex and vaginal

intercourse with T.T., the texts that Johnson sent to friends during and after the

incident with M.V., and the video of M.V. and H.J. sleeping.

Prior to trial, Johnson filed a motion to suppress physical evidence, including

the cell phone seized from his apartment. The court held a hearing on the motion.

Adams testified for the State. In addition to describing the October 28, 2016

examinations of Johnson’s cell phone, Adams also testified about a recorded phone

call Johnson had with an acquaintance on November 15, 2016, while he was in

jail. During the call, which was played for the court, Johnson acknowledged that

his counsel had made a “deal” with the State concerning the examination of his cell

phone and that the court ordered him to reenter his passcode based upon this deal.

Although Johnson represented that he did not know about the deal his counsel

made allowing the State to examine his phone, he said he said he went along with

it because he thought it was going to help him.

Following the hearing, the court entered its order denying Johnson’s motion

to suppress. In its order, the court found that the search warrant was supported

by probable cause and properly permitted a search of the contents of the cell

phone. The court also found law enforcement acted in good faith reliance on the

warrant in executing it. The court rejected Johnson’s argument that the warrant

was stale by the time the phone was examined. Moreover, the court found that,

18 even if the warrant were invalid or stale, Johnson consented, through his counsel,

to a search and examination of his phone.

The court further found that the “foregone conclusion” exception negated

Johnson’s argument that the compelled use of his passcode was testimonial and

violated his Fifth Amendment rights. Specifically, the court found that the State

knew a passcode existed, knew that Johnson possessed the passcode, and knew

the passcode was authentic because the State saw Johnson use it to unlock his

phone. Likewise, the State was aware, with reasonable particularity, that

Johnson’s phone contained relevant evidence, a fact that was bolstered by

Johnson’s desire to have his own expert examine the phone for exculpatory

evidence and the discussions over several months between defense counsel and

the State regarding the logistics of the cell phone examination.

At trial, the court granted Johnson a continuing objection with respect to his

cell phone and the contents of the phone. Johnson included his claims of error

regarding the admission of the cell phone evidence in his motion for new trial.

B. Validity of Warrant under Fourth Amendment

In Point I, Johnson contends the court clearly erred in denying his motion to

suppress and admitting the cell phone evidence because the search warrant was

not supported by probable cause, was not sufficiently particular, was overbroad,

and was stale when it was executed.

“The Fourth Amendment protects the ‘right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

19 seizures.’” Davis v. United States, 564 U.S. 229, 236 (2011) (quoting U.S. Const.

amend. IV). A warrant is generally required to search the contents of a cell phone.

Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 2493 (2014). Pursuant to

constitutional and statutory law, a search warrant is invalid if it is issued without

probable cause and if it does not describe the person, place, or thing to be

searched or the property, article, material, substance, or person to be seized with

sufficient particularity. State v. Douglass, 544 S.W.3d 182, 189 (Mo. banc 2018)

(citing U.S. Const. amend. IV; Mo. Const. art. I, § 15; § 542.276.10(3) and (5),

RSMo Cum. Supp. 2013).

i. Probable Cause

To determine whether probable cause exists to issue a search warrant, a

neutral judge or magistrate “is simply to make a practical, common-sense decision

on whether, given all the circumstances set forth in the affidavit before him,

including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” State v. Robinson, 454 S.W.3d 428, 437 (Mo. App.

2015) (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983) (internal quotations

omitted)). “The presence of such contraband or evidence need not be established,

at a prima facie level, by a preponderance of the evidence or beyond a reasonable

doubt.” Id. at 438 (internal citations and quotations omitted). A reviewing court’s

duty “is simply to ensure that the magistrate had a ‘substantial basis’ for

concluding that probable cause existed.” Id. (quoting Gates, 462 U.S. at 238).

20 In the affidavit filed in support of and incorporated into the warrant,

Detective Corcoran averred that Johnson was suspected of committing the crimes

of felony drug possession, distribution, delivery, and manufacture of a controlled

substance, and first-degree rape. Corcoran described, in detail, the incidents

reported by M.S., K.B., and M.V. In each incident, Johnson provided the victim

with one or more controlled substances, including marijuana, Xanax, cocaine, and

psychedelics, that rendered the victim either high or incapacitated. Johnson then

either took advantage of the victim sexually (M.S.), undressed the victim before

being interrupted by the police (K.B.), or had sexual intercourse with the victim

multiple times (M.V.). Corcoran averred that, based upon this ongoing criminal

history, it was likely that Johnson had a cell phone that “may be used in the

procurement and distribution of controlled substances stored at this address.” He

stated that, based upon his training and experience, he knows that suspects use

cell phones to store illegal content and carry out illegal activity such as felony drug

possession and distribution, delivery, and manufacture of a controlled substance.

Also, Corcoran explained that he knows that cell phones contain a multitude of

electronic capabilities very similar to a computer, including the ability to search the

internet, obtain and send e-mails, take photos, and access social media

applications. Additionally, Corcoran averred that M.V. told police that Johnson

also used his phone to look up her condition during the rape.

Under the totality of the circumstances, including Johnson’s providing

controlled substances to the victims during the incidents, Corcoran’s knowledge

21 from his training and experience that suspects use cell phones to procure and

distribute such controlled substances, and Johnson’s accessing his cell phone

during the rape of M.V., there was a substantial basis for concluding that there

was a fair probability that the search of Johnson’s cell phone would uncover

evidence of the alleged drug offenses and the rape. The warrant to search

Johnson’s phone was supported by probable cause.

ii. Particularity and Breadth

“The Constitution limits searches by law enforcement to ‘the specific areas

and things for which there is probable cause to search,’ and it requires that a

search ‘be carefully tailored to its justifications’ and ‘not take on the character of

the wide-ranging exploratory searches the Framers intended to prohibit.’” United

States v. Manafort, 314 F. Supp. 3d 258, 263 (D.D.C. 2018) (quoting Maryland v.

Garrison, 480 U.S. 79, 84 (1987)). Therefore, search warrants must “‘describe

the items to be seized with as much specificity as the government’s knowledge

and circumstances allow, and warrants are conclusively invalidated by their

substantial failure to specify as nearly as possible the distinguishing characteristics

of the goods to be seized.’” Douglass, 544 S.W.3d at 192 (citation omitted).

“Specificity has two aspects: particularity and breadth. Particularity is the

requirement that the warrant must clearly state what is sought. Breadth deals with

the requirement that the scope of the warrant be limited by the probable cause on

which the warrant is based.” Manafort, 314 F. Supp. 3d at 263-64 (citation

omitted). “The particularity requirement is met if the warrant’s description enables

22 the searcher to reasonably ascertain and identify the items to be seized.”

Douglass, 544 S.W.3d at 192 (internal citation and quotations omitted).

The warrant in this case provided that law enforcement could conduct an

off-premises examination or search Johnson’s cell phone “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 556.030.” Section 556.063, RSMo Cum. Supp. 2013,5 defined

“data” and “computer software” as

“Data”, a representation of information, facts, knowledge, concepts, or instructions prepared in a formalized or other manner and intended for use in a computer or computer network. Data may be in any form including, but not limited to, printouts, microfiche, magnetic storage media, punched cards and as may be stored in the memory of a computer[.]

“Computer software”, digital information which can be interpreted by a computer and any of its related components to direct the way they work. Software is stored in electronic, magnetic, optical or other digital form. It commonly includes programs to run operating systems and applications, such as word processing, graphic, or spreadsheet programs, utilities, compilers, interpreters and communications programs[.]

§ 556.063(11) and (7). Johnson argues that this language was not sufficiently

particular because it did not define the specific information it was seeking from the

phone or limit the search to specific applications or functions on the phone.

5 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013 Cumulative Supplement.

23 No Missouri court has addressed the particularity and breadth requirements

relative to warrants authorizing the search of cell phones, but decisions from other

jurisdictions offer guidance. Johnson is correct that there are cases holding that a

warrant to search all data or all files on a cell phone is not sufficiently particular

and is overbroad. See, e.g., United States v. Wey, 256 F. Supp. 3d 355, 385-88

(S.D.N.Y. 2017); United States v. Winn, 79 F. Supp. 3d 904, 918-22 (S.D. Ill.

2015); State v. Henderson, 854 N.W.2d 616, 634 (Neb. 2014). In so holding,

these courts have explained that, given the Supreme Court’s recognition in Riley

that cell phones contain an immense storage capacity for potentially sensitive and

private information, “‘a heightened sensitivity to the particularity requirement in the

context of digital searches’ is necessary.” Wey, 259 F. Supp. 3d at 383 (quoting

United States v. Galpin, 720 F.3d 436, 447 (2d Cir. 2013)); see also Henderson,

854 N.W.2d at 288-89. Furthermore, law enforcement cannot possibly have

probable cause to believe that everything on a cell phone is evidence of the

suspected crime. See Winn, 79 F. Supp. 3d at 919-20. Hence, courts have found

a warrant insufficiently particular if it does not limit the categories of data, e.g.,

photos, videos, texts, call logs, or applications, that can be searched, see, e.g.,

Winn, 79 F. Supp. 3d at 919-20, and does not contain a temporal limitation on the

data to be seized, see, e.g., Wey, 256 F. Supp. 3d at 387-88.

Other cases, however, have held that the particularity requirement in a

warrant authorizing the search of all data or all files in a cell phone is met so long

as the warrant constrains the search to evidence of a specific crime. See, e.g.,

24 United States v. Bishop, 910 F.3d 335, 336-37 (7th Cir. 2018); United States v.

Castro, 881 F.3d 961, 965 (6th Cir. 2018); United States v. Bass, 785 F.3d 1043,

1049-50 (6th Cir. 2015); United States v. Zongli Chang, 2018 WL 3640435 at *5

(E.D. Mich. July 31, 2018); United States v. Grinder, 2018 WL 2943235 at *4-5

(D. Md. June 12, 2018); People v. English, 52 Misc. 3d 318, 321 (N.Y. Sup. Ct.

2016). The rationale for holding that such warrants are sufficiently particular and

not overbroad is that “[c]riminals don’t advertise where they keep evidence.”

Bishop, 910 F.3d at 336. Indeed, “[a] warrant authorizing the search of a house

for drugs permits the police to search everywhere in the house, because

‘everywhere’ is where the contraband may be hidden.” Id. at 336-37. Moreover,

in the context of electronic devices such as computers and cell phones, “‘criminals

can--and often do--hide, mislabel, or manipulate files to conceal criminal activity

[such that] a broad, expansive search of the [device] may be required.’” Bass, 785

F.3d at 1049-50 (citations omitted). Because there is no way for law enforcement

to know in advance how a suspect may label or code files that contain evidence of

criminal activity, “by necessity government efforts to locate particular files will

require examining many other files to exclude the possibility that the sought after

data are concealed there.” English, 52 Misc. 3d at 321-22. Just as a warrant

authorizing a search of a filing cabinet allows the search of every document in the

files because the incriminating evidence may be found in any file or folder, so too

should a warrant allow the search of every document on a cell phone, which serves

the same function as a filing cabinet. Bishop, 910 F.3d at 337 (citing Andresen v.

25 Maryland, 427 U.S. 463 (1976) and Riley, 134 S. Ct. at 2489). Thus, a warrant is

sufficiently particular if it “cabins the things being looked for by stating what crime

is under investigation.” Id.

We find the reasoning of Bishop, Bass, English, and similar cases persuasive.

The warrant in this case constrained the search of Johnson’s phone to evidence of

the specific crimes of distribution, deliver, and manufacture of a controlled

substance and first-degree rape. The affidavit that was incorporated into the

warrant described in detail the offenses that Johnson was suspected of committing

and how cell phones could be used in the commission of those offenses. At the

time the cell phone was seized, the officers could not have known where such

evidence was located in the phone or in what format, such as texts, videos,

photos, emails, or applications. Under the circumstances, the scope of the warrant

was sufficiently particular and was not overbroad. Bass, 785 F.3d at 1050.

iii. Staleness

There is no bright-line test for determining staleness. State v. Valentine,

430 S.W.3d 339, 344 (Mo. App. 2014). “[T]he likelihood that evidence sought is

still in place is a function not of a watch or calendar, but of the character of the

crime, of the criminal, of the thing seized or of the place searched.” State v.

Wilbers, 347 S.W.3d 552, 560 (Mo. App. 2011) (citation omitted). “As such,

courts have been more tolerant of dated allegations when the evidence sought is of

the sort that can reasonably be expected to be kept for long periods of time in the

place to be searched.” Id. (citation omitted).

26 A Pennsylvania court rejected a staleness argument in circumstances similar

to those in this case. In Commonwealth v. Knoble, 188 A.3d 1199, 1201-02 (Pa.

Super. Ct. 2018), police seized a cell phone in a consensual warrantless search on

March 11, 2015. One month later, on April 13, 2015, police obtained a warrant to

search the contents of the phone and conducted a data extraction. Id. at 1202.

Nine months later, on January 12, 2016, police conducted a second data

extraction on the phone. Id. at 1203. Police did not obtain a new search warrant

to perform the second extraction. Id. In response to the defendant’s staleness

challenge on appeal, the Pennsylvania court found that “the facts and

circumstances supporting the issuance of the April 13, 2015 search warrant

remained unchanged at the time of the second extraction.” Id. at 1207.

Specifically, the court noted that the police had secured the phone when it was

originally seized “to ensure that it remained in its original condition and that no one

could alter its contents.” Id. Additionally, the court noted that “the cell phone was

in police custody during the entirety of the relevant period and remained

unalterable.” Id.

Similarly, in this case, Johnson’s phone remained in police custody the entire

time after it was seized. Adams’s testimony indicates that, while the phone was in

police custody, the device was turned off and was turned on only when he

attempted to search the phone and found that it was locked. According to Adams,

turning off the phone prevented it from being remotely erased.

27 Johnson makes much of the fact that the State offered evidence and

argument that, while he was in jail, he asked one of his friends and his mother to

either remotely lock the phone or erase evidence from it.6 He argues that the

State’s raising this issue shows that the State had “concerns of the mutability and

destructibility of evidence” while the phone was in police custody, prior to the data

extraction. We disagree. The record shows that the State raised the issue of

Johnson’s attempting to have the phone remotely locked or erased in two

contexts. First, the State elicited evidence on this issue in conjunction with

evidence regarding the defense’s examination of the phone. Specifically, after

offering evidence that Johnson attempted to have the phone remotely locked or

erased, the State offered evidence that, during the defense’s examination of the

phone, Chatten turned on the phone and neglected to put it in airplane mode,

thereby leaving it vulnerable to being remotely erased. While this may indicate that

the State had concerns about the phone being remotely erased during the

defense’s examination of the phone, it does not indicate that the State had

concerns about the mutability and destructibility of evidence on the phone during

the eight months it was in police custody before the examination. Second, the

State used the evidence of Johnson’s attempting to have the phone remotely

6 While Johnson’s phone was locked, there is no evidence that it had been remotely locked. Rather, Adams explained that, when a thumbprint has not been entered to unlock that type of iPhone for eight hours, the phone locks and requires a passcode to unlock it. Also, the phone locks and requires a passcode to unlock it when the phone has been turned off.

28 locked or erased to demonstrate his consciousness of guilt, arguing that he knew

he had “some incriminating stuff” on it.

Because the record clearly shows that Johnson’s phone was in police

custody and remained unalterable during the eight months between the time it was

seized and the search warrant was executed, the search warrant was not stale.

The search of Johnson’s cell phone complied with the Fourth Amendment. Point I

is denied.

C. Consent to Search

In Point II, Johnson contends the court clearly erred in denying his motion to

suppress and admitting the cell phone evidence because he did not consent to the

search of his cell phone. Having found that the search of Johnson’s cell phone

complied with the Fourth Amendment’s warrant requirement, we need not

determine whether Johnson consented to the search. Point II is denied as moot.

D. Compulsion of Passcode and Fifth Amendment

In Point III, Johnson contends the circuit court clearly erred in denying his

motion to suppress and admitting the evidence from his cell phone because the

court’s order compelling him to use his passcode to unlock the phone so the State

could examine it violated his Fifth Amendment privilege against self-incrimination.

Specifically, Johnson argues that entering his passcode into the phone constituted

a testimonial act that was protected under the Fifth Amendment.

The Fifth Amendment protects a person from being compelled in a criminal

case to be a witness against himself. U.S. Const. amend. V. While it protects

29 against compelled self-incrimination, it does not protect against the disclosure of

private information. Fisher v. United States, 425 U.S. 391, 401 (1976). Hence,

“the Fifth Amendment does not independently proscribe the compelled production

of every sort of incriminating evidence.” Id. at 408. Rather, the Fifth Amendment

“applies only when the accused is compelled to make a Testimonial Communication

that is incriminating.” Id. “To be testimonial, a communication must either

‘explicitly or implicitly . . . relate a factual assertion or disclose information.’”

United States v. Apple MacPro Computer, 851 F.3d 238, 247 (3rd Cir. 2017)

(quoting Doe v. United States, 487 U.S. 201, 210 (1988)).

“[T]he act of producing evidence demanded by the government may have

‘communicative aspects’ that would render the Fifth Amendment applicable.”

Commonwealth v. Gelfgatt, 11 N.E.3d 605, 613 (Mass. 2014) (quoting Fisher,

425 U.S. at 410). “Whether an act of production is testimonial depends on

whether the government compels the individual to disclose ‘the contents of his

own mind’ to explicitly or implicitly communicate some statement of fact.” Id.

(quoting United States v. Hubbell, 530 U.S. 27, 43 (2000)). In other words, “the

act of complying with the government’s demand could constitute a testimonial

communication where it is considered to be a tacit admission to the existence of

the evidence demanded, the possession or control of such evidence by the

individual, and the authenticity of the evidence.” Id. (citing Hubbell, 530 at 36

n.19). Whether an act of production is a testimonial act triggering the Fifth

Amendment depends on the facts and circumstances of each case. Id. (citing

30 Fisher, 425 U.S. at 410). For example, in Hubbell, the Supreme Court found that

compelling the defendant to produce eleven categories of documents under a

subpoena duces tecum required the defendant to make extensive use of the

contents of his own mind in identifying and assembling the hundreds of documents

responsive to the subpoena’s broad requests; therefore, the act of production was

testimonial for Fifth Amendment purposes. Hubbell, 530 U.S. at 43.

No Missouri court has addressed whether the act of entering a passcode to

unlock an electronic device seized by the government is a testimonial

communication triggering Fifth Amendment protection. In jurisdictions that have

addressed this issue, the majority of cases have determined that this act of

production is, in fact, a testimonial act. See, e.g., Apple MacPro Computer, 851

F.3d 238 at 247; In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011,

670 F.3d 1335, 1341 (11th Cir. 2012); State v. Andrews, 197 A.3d 200, 205

(N.J. Super. Ct. 2018); Gelfgatt, 11 N.E.3d at 614. The rationale is that, by

entering a passcode, the defendant is implicitly acknowledging that he has

ownership and control over the electronic device and its content. Gelfgatt, 11

N.E.3d at 614. Essentially, the defendant’s act of entering a passcode is “a

communication of his knowledge about particular facts that would be relevant to

the [government]’s case.” Id. By producing his phone’s passcode, the “defendant

is making an implicit statement of fact that the iPhone passcodes are within his

‘possession or control’” and is “acknowledging that he has accessed the phone

before, set up password capabilities, and exercised some measure of control over

31 the phone and its contents.” Andrews, 197 A.3d at 205 (citing Doe, 487 U.S. at

209).

This does not end the inquiry, however. Gelfgatt, 11 N.E.3d at 614. A

defendant’s act of production can lose its testimonial character where “the

information that would be disclosed by the defendant is a ‘foregone conclusion.’”

Id. The foregone conclusion exception “provides that an act of production does

not involve testimonial communication where the facts conveyed already are

known to the government, such that the individual ‘adds little or nothing to the

sum total of the [g]overnment’s information.’” Id. (quoting Fisher, 425 U.S. at

411)). For the foregone conclusion exception to apply, “the government must

establish its knowledge of (1) the existence of the evidence demanded; (2) the

possession or control of that evidence by the defendant; and (3) the authenticity of

the evidence.” Id. (citing Fisher, 425 U.S. at 410-13). Where the government

satisfies the elements of the foregone conclusion exception, “‘no constitutional

rights are touched. The question is not of testimony but of surrender.’” Id.

(quoting Fisher, 425 U.S. at 411). Under such circumstances, “the act of

production does not compel a defendant to be a witness against himself.” Id. at

615. This is true even if the device contains incriminating evidence. Andrews,

197 A.3d at 207. “If a compelled statement is not testimonial and for that reason

not protected by the privilege, it cannot become so because it will lead to

incriminating evidence.” Id. at 207-08 (quoting Doe, 487 U.S. at 208-09 n.6)

(internal citation and quotations omitted).

32 In this case, before the State sought the order compelling Johnson to enter

his passcode to unlock the phone so the State’s expert could examine it, the police

observed Johnson enter his passcode into the phone and unlock it so that his

expert could examine it first. The evidence in the light most favorable to the

court’s suppression order shows that, despite Johnson’s current arguments to the

contrary, he entered his passcode knowingly and voluntarily in the presence of both

defense counsel and law enforcement for the purpose of having his expert examine

the phone for exculpatory evidence. This action satisfied the elements of the

foregone conclusion exception, because the implicit facts that were conveyed

through his act of entering the passcode the second time pursuant to the order to

compel -- the existence of the passcode, its possession or control by him, and the

passcode’s authenticity -- were already known to the State and, therefore, were a

foregone conclusion. See Andrews, 197 A.3d at 205; Gelfgatt, 11 N.E.3d at 615.

Nevertheless, Johnson argues that, to satisfy the foregone conclusion

exception, the State had to show that it was a foregone conclusion not only that

he could unlock the phone with his passcode but also that certain files were on the

phone. In support of this argument, he relies on In re Grand Jury Subpoena, 670

F.3d 1335. In that case, the defendant was ordered to appear before a grand jury

and produce the contents of the hard drives of his laptop and five external hard

drives. Id. at 1337. The contents of the drives were encrypted, so the subpoena

required the defendant to decrypt them. Id. The defendant refused, asserting his

Fifth Amendment privilege against self-incrimination. Id.

33 After finding that the decryption and production of the hard drives was a

testimonial act, the Eleventh Circuit found that the foregone conclusion exception

did not apply because the government did not know whether any files actually

existed and were located on the hard drives. Id. at 1345-46. The court concluded

that the foregone conclusion exception does not apply in cases where the

defendant is compelled to decrypt a device unless the government can show with

reasonable particularity its knowledge of the content of the files on the device. Id.

at 1347. Examples of cases following the Eleventh Circuit’s decision in In re Grand

Jury Subpoena include G.A.Q.L. v. State, 257 So.3d 1058, 1063-64 (Fl. Dist. Ct.

App. 2018), and SEC v. Huang, 2015 WL 5611644 at *3 (E.D. Pa. Sept. 23,

2015).

Other cases, however, have questioned In re Grand Jury Subpoena’s

determination that the government “must show that it is a foregone conclusion not

only that the defendant has the ability to decrypt the device(s), but also that

certain files are on the device(s).” United States v. Spencer, 2018 WL 1964588 at

*2 (N.D. Cal. April 26, 2018) (citing In re Grand Jury Subpoena, 670 F.3d at

1347). In Apple MacPro Computer, the court stated that “a very sound argument

can be made that the foregone conclusion doctrine properly focuses on whether

the [g]overnment already knows the testimony that is implicit in the act of

production.” 851 F. 3d at 248 n.7. The testimony that is implicit in the act of

providing the password for the devices is only that the defendant knows the

password for the devices. Id. Similarly, the court in Andrews found the

34 defendant’s reliance on In re Grand Jury Subpoena “misplaced.” 197 A.3d at 208.

In that case, the court noted that the defendant was “ordered to produce the

passcodes and the testimonial aspects of that act pertain to the ownership, control,

use, and ability to access the phones.” Id. Because the government “has shown it

has prior knowledge of those facts,” the court found that the foregone conclusion

exception applied. Id. Lastly, in Spencer, 2018 WL 1964588, the court rejected

the defendant’s reliance on In re Grand Jury Subpoena and concluded that “the

government need only show it is a foregone conclusion that [the defendant] has

the ability to decrypt the devices.” Id. at *3 (footnote omitted). The court further

noted that, to the extent that the defendant “contends that the government has

not adequately identified the files it seeks, that is an issue properly raised under the

Fourth Amendment, not the Fifth.” Id.

We find the reasoning of the courts in Apple MacPro Computer, Andrews,

and Spencer persuasive. The focus of the foregone conclusion exception is the

extent of the State’s knowledge of the existence of the facts conveyed through the

compelled act of production. Here, Johnson was ordered to produce the passcode

to his phone. The facts conveyed through his act of producing the passcode were

the existence of the passcode, his possession and control of the phone’s passcode,

and the passcode’s authenticity. The State showed that it had prior knowledge of

those facts because Johnson knowingly and voluntarily entered the passcode the

first time in the presence of law enforcement and defense counsel for the purpose

of having his expert examine the phone; hence, their disclosure a second time

35 pursuant to the order to compel was a foregone conclusion.7 Therefore, the

compelled act of production was not testimonial and not protected by the Fifth

Amendment privilege against self-incrimination, and it could not become so simply

because it led to incriminating evidence. Andrews, 197 A.3d at 207 (citing Doe,

487 U.S. at 208-09 n.6). Point III is denied.

II. Propriety of Joinder and Denial of Motion for Severance

In Point IV, Johnson contends the circuit court erred in denying his motion

for improper joinder and severance. He argues that joinder was improper because

the two first-degree sodomy charges, two first-degree rape charges, and one

charge of attempted first-degree sexual abuse involved four different victims and

were not of the same or sufficiently similar character or of a common scheme or

plan to merit joinder. Johnson further asserts that the court should have severed

the charges because evidence relating to certain counts would not have been

admissible in the trial of other counts if the counts were tried separately.

“Appellate review of claims of improper joinder and failure to sever involves

a two-step analysis.” State v. Holliday, 231 S.W.3d 287, 292 (Mo. App. 2007).

First, we determine whether joinder was proper, which is a question of law. State

v. Collins, 527 S.W.3d 176, 180 (Mo. App. 2017). If joinder was not proper, then

we presume prejudice, and severance is mandatory. Id. If joinder was proper, then

7 Indeed, Johnson’s counsel conceded during oral arguments on appeal that if, after observing Johnson enter his passcode the first time for his expert’s examination, law enforcement had simply entered the passcode on its own instead of seeking the order compelling Johnson to do it, the Fifth Amendment would not be implicated.

36 we “must determine whether the court abused its discretion in denying the

defendant’s motion to sever.” Id. “Severance assumes that joinder is proper, but

gives discretion to the trial court to decide whether trying the charges together

would result in substantial prejudice.” Holliday, 231 S.W.3d at 292.

A. Joinder

Liberal joinder of criminal offenses is favored for purposes of judicial

economy. State v. McKinney, 314 S.W.3d 339, 341 (Mo. banc 2010). Two or

more offenses may be charged in the same charging document “if the offenses

charged . . . are of the same or similar character or are based on the same act or

transaction or on two or more acts or transactions connected together or

constituting parts of a common scheme or plan.” § 545.140.2. See also Rule

23.05.

The circuit court found that joinder was appropriate because the charged

offenses were of the same or similar character. “The use of similar or comparable

tactics is sufficient to show that the offenses are the same or similar character for

purposes of joinder.” Holliday, 231 S.W.3d at 293. “The tactics need only

resemble or correspond with one another; they do not need to be identical.” Id.

“Nonexclusive factors [that show] similar tactics include commission of the same

type of offenses, victims of the same sex and age group, offenses occurring at the

same location, offenses closely related in time.” Id. (alteration in original) (citation

omitted).

37 Applying these factors to the facts of this case, we agree with the circuit

court that the offenses were of the same or similar character. The five offenses,

all sexual in nature, involved women between the ages of seventeen and twenty-

one. The offenses occurred while the victims were in an impaired or drug-induced

state. The offenses occurred after the defendant met the victims at bars in the

same area of Columbia and brought them back to his bedroom. Lastly, the

offenses occurred in a span of less than six months. While Johnson asserts that

joinder was improper because “there was insignificant temporal proximity between

the five alleged acts, virtually no evidentiary overlap as to these discrete events, . .

. and there were four distinct alleged victims,” we find that the similarity between

the victims, the offenses, the tactics, and the location of the offenses, as well as

the relatively short time span between the offenses, rendered joinder proper. See

State v. Conley, 873 S.W.2d 233, 238 (Mo. banc 1994); State v. French, 308

S.W.3d 266, 271 (Mo. App. 2010).

B. Severance

Having found that joinder was proper, we next consider whether the court

erred in denying Johnson’s motion for severance. The circuit court has broad

discretion as to severance. McKinney, 314 S.W.3d at 342. We will not disturb

its decision unless we find an abuse of discretion, in other words, that the ruling is

“clearly against the logic of the circumstances then before the court and is so

arbitrary and unreasonable as to shock the sense of justice and indicate a lack of

careful consideration.” Id.

38 The court may grant a severance motion only “‘upon a written motion of the

defendant . . . and upon a particularized showing of substantial prejudice.’”

Collins, 527 S.W.3d at 183 (quoting § 545.885.2). Section 545.885.2 defines

“substantial prejudice” as “a bias or discrimination against the defendant . . . which

is actually existing or real and not one which is merely imaginary, illusionary or

nominal.” In determining prejudice, “‘[t]he court should consider, among other

relevant factors, the number of offenses charged, the complexity of the evidence

offered, and whether the trier of fact will be able to distinguish the evidence and

apply the law intelligently as to each offense.’” Conley, 873 S.W.2d at 238

(quoting State v. McCrary, 621 S.W.2d 266, 272 (Mo. banc 1981)).

In his written motion, Johnson argued that joinder would result in substantial

prejudice because of the court’s prior ruling that “at least some propensity evidence

is admissible at trial for the charge relating to M.V. under Missouri Constitution

Article I, Section 18(c). All of the other alleged victims are over 18 years old, so

propensity evidence would not be admissible regarding those allegations if the

counts were tried separately.” Additionally, Johnson argued that joinder would

cause him substantial prejudice because the court had “previously ruled that

propensity evidence regarding K.B. was not admissible at trial. The addition of

Count II for attempted sexual abuse of K.B. by removing her clothes is an effort to

contravene the [c]ourt’s ruling.”

39 These allegations were insufficient to demonstrate substantial prejudice.8

“Severance of jointly charged offenses is not mandated merely because evidence

relating to one count would not be admissible in the trial of a second count if the

two were tried separately.” Conley, 873 S.W.2d at 238. While it is a “relevant

factor” in determining prejudice, “even where the evidence would not be admissible

if the charges were tried separately, any prejudice may be overcome where the

evidence with regard to each crime is sufficiently simple and distinct to mitigate the

risks of joinder.” Id.

Here, Johnson was charged with five offenses: two first-degree sodomies,

two first-degree rapes, and one count of attempted first-degree sexual abuse. The

offenses occurred on four separate days and involved four separate victims. Each

charge had its own set of witnesses, and some of the charges involved testimony

from only one or two witnesses. Moreover, the jury was instructed that “[t]he

defendant is charged with a separate offense in each of the five (5) counts

submitted to you. Each count must be considered separately.” The instruction

also provided, “You should return a separate verdict for each count and you can

return only one verdict for each count.” Additionally, the jury was given separate

verdict-directing instructions and verdict forms for each count. “Where the

8 In his brief, Johnson also alleges that he was substantially prejudiced because the joinder of the offenses constrained the circuit court to impose consecutive, rather than concurrent, sentences on four of the counts. We decline to consider the merits of this allegation, as Johnson did not include this allegation in his required written motion for severance and is attempting to enlarge his particularized showing of substantial prejudice beyond what he presented to the court below. Because the circuit court never had the opportunity to address this allegation of prejudice, we cannot say that the court abused its discretion in denying Johnson’s motion to sever on this basis.

40 evidence relating to each of the offenses is uncomplicated and distinct, and the

jury is properly instructed to return separate verdicts for each offense charged, the

trial court does not abuse its discretion in refusing to sever the counts.” Collins,

527 S.W.3d at 184-85 (quoting State v. Love, 293 S.W.3d 471, 477 (Mo. App.

2009)). Point IV is denied.

III. Sufficiency of Evidence to Support Attempted Sexual Abuse Conviction

In Point V, Johnson contends the evidence was insufficient to support his

conviction for attempted first-degree sexual abuse of K.B. Our review of a

challenge to the sufficiency of the evidence to support a conviction is “limited to

determining whether there was sufficient evidence from which a reasonable juror

might have found the defendant guilty beyond a reasonable doubt.” State v.

Naylor, 510 S.W.3d 855, 859 (Mo. banc 2017) (internal citation and quotations

omitted). “This is not an assessment of whether this [c]ourt believes that the

evidence at trial established guilt beyond a reasonable doubt but rather a question

of whether, in light of the evidence most favorable to the State, any rational fact-

finder could have found the essential elements of the crime beyond a reasonable

doubt.” Id. (internal citations and quotations omitted). We do not reweigh the

evidence but, instead, accept as true all evidence and inferences supporting guilt

and ignore all contrary evidence and inferences. Id. at 858-59.

A person commits the crime of first-degree sexual abuse if he “subjects

another person to sexual contact when that person is incapacitated, incapable of

consent, or lacks the capacity to consent, or by the use of forcible compulsion.” §

41 566.100.1. “Sexual contact” means “any touching of another person with the

genitals or any touching of the genitals or anus of another person, or the breast of

a female person, or such touching through the clothing, for the purpose of arousing

or gratifying sexual desire of any person.” § 566.010(3).

“A person is guilty of attempt to commit an offense when, with the purpose

of committing the offense, he does any act which is a substantial step towards the

commission of the offense.” § 564.011.1. “A ‘substantial step’ is conduct which

is strongly corroborative of the firmness of the actor’s purpose to complete the

commission of the offense.” Id. To be “strongly corroborative,” “an action must

logically support the firmness of the actor’s criminal purpose in question.” State v.

Rollins, 321 S.W.3d 353, 360 (Mo. App. 2010). “Whether an act constitutes a

substantial step depends on the facts of the particular case.” State v.

Cunningham, 547 S.W.3d 795, 798 (Mo. App. 2018).

In the light most favorable to the verdict, the evidence showed that Johnson

gave K.B. a substance that she believed was cocaine. Johnson, who admitted to

being “very knowledgeable” about the different forms of hallucinogenic mushrooms

and their effects, admitted that he had actually given K.B. a mixture of cocaine and

a substance associated with hallucinogenic mushrooms that was not for human

consumption. After K.B. began showing the effects of the drugs by crying,

screaming, and crawling down the hallway, Johnson took her into his apartment.

Johnson did not open the door when J.L., who explained who he was and

said that he was looking for K.B., knocked on Johnson’s door for ten to fifteen

42 minutes. When the police then knocked on Johnson’s door looking for K.B., they

had to knock for “a very long time” before Johnson finally answered the door.

After Johnson allowed the police inside, they found K.B. inside Johnson’s

bedroom, which he had locked from the outside. She was not responsive and

appeared heavily intoxicated. A jar of Vaseline was on the table next to the bed.

K.B.’s clothes, including her underwear, had been removed and piled in a corner.

K.B. was dressed in clothes that were not hers and that appeared to have been

hastily put on her. Although Johnson told one of the officers that he had removed

K.B.’s clothes for her because she had vomited “everywhere” on them, the officer

did not see any vomit on her clothes. Moreover, at trial, Johnson gave a different

explanation for removing K.B.’s clothes, as he testified that he had “helped” her

take off her clothes because she had urinated on herself.

From this evidence, the jury could reasonably infer that Johnson had

removed K.B.’s clothes for the purpose of engaging in sexual contact with her and

that he would have committed the act had the police not intervened. See State v.

Reese, 436 S.W.3d 738, 742 (Mo. App. 2014) (noting that “[w]e may consider

law enforcement intervention when determining intent”). There was sufficient

evidence from which a rational juror could have found Johnson guilty beyond a

reasonable doubt of attempted first-degree sexual assault. Point V is denied.

43 CONCLUSION

The judgment is affirmed.

___________________________________ LISA WHITE HARDWICK, JUDGE ALL CONCUR.