State v. Rank

849 S.W.2d 230, 1993 Mo. App. LEXIS 265, 1993 WL 43587
CourtMissouri Court of Appeals
DecidedFebruary 23, 1993
DocketNo. WD 46003
StatusPublished
Cited by5 cases

This text of 849 S.W.2d 230 (State v. Rank) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rank, 849 S.W.2d 230, 1993 Mo. App. LEXIS 265, 1993 WL 43587 (Mo. Ct. App. 1993).

Opinion

LOWENSTEIN, Chief Judge.

Leo Rank was court-tried and found guilty of sodomizing a six-year-old daughter of his son’s wife, (the victim, his step-granddaughter, will be referred to as “N”). Rank babysat with N in December, 1990, in Warsaw, Missouri. He does not contest the sufficiency of the evidence supporting a violation of § 566.060.3, RSMo.Cum.Supp. 1992 which denounces deviate sexual intercourse (any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person) with someone to whom he is not married who is under the age of fourteen. Rank received a fifteen year sentence for this Class B felony.

Other than the defendant taking the stand to disclose his age of sixty-five, the State supplied the rest of the facts. N’s mother testified on December 31, while she was doing laundry with Rank, with her daughter present, “He told me that he had been licking on her ... and asked me if it was all right.” Rank told his daughter-in-law that Steve, his son, would “understand.” N’s testimony, taken on a video, disclosed during the month of December, Rank undressed her and “stuck his thing” in her, licked where she went to the bathroom and inserted his finger in her. After his arrest, Rank wrote out a two page confession which included the following: “The only thing that I done was finger her and licked her vagina ... [N] wanted me to fuck her but I didn’t as she really means a lot to me and since I have been a widower for the past six years and no woman I let my emotions get away from me.”

County deputies and city police went to Rank’s home in the evening of January 1. When Rank answered the door, the law enforcement officials told him he was under arrest as he stood in the doorway. They arrested Rank for rape and told him he would have to go to the sheriff’s office. Rank, who was wearing pajamas with womens’ purple pantyhose or nylon stockings showing underneath, asked if he could change his clothes. “He said, ‘come in the house. I’ll have to get dressed’.” The four law enforcement officials, who had not obtained an arrest warrant, went into the defendant’s home and one of them saw a typewriter with paper in it. That paper [232]*232and another page in open view was a daily diary or journal, which in explicit detail, recounted the liberties he had taken with N. The officers took Rank to jail. The next day, law enforcement officials obtained a search warrant, went back to the house and seized the papers they had seen as well as several years’ worth of Rank’s entries which detailed his extensive pattern of wearing women’s clothes around the house. The Court received the documents into evidence.

The points raised on appeal are: 1) Rank never indicated he “understood and knowingly and intelligently waived his rights” when making his written confession, 2) the officers entered his home without an arrest warrant which should have resulted in exclusion of his diary, and 3) the police executed the post-arrest search warrant improperly.

I.

Before giving his handwritten confession, a deputy read Rank his Miranda warnings twice. Rank relies on testimony given by the deputy that he never specifically asked Rank, “if he understood his rights at any time.”

Although the State has the burden of showing that Rank’s confession was made knowingly and voluntarily of his rights to remain silent, Tague v. Louisiana, 444 U.S. 469, 471, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979), the surrounding circumstances support the trial court’s decision not to suppress the confession. Rank reads and writes and has an eighth grade education. There is not a hint of evidence he was unable to understand the effect of writing out a statement, or evidence of any police coercion. State v. Hunter, 619 S.W.2d 883, 886 (Mo.App. 1981). After having the acuity to ask N’s mother to consent to the sexual activity, it would be absurd to now say Rank didn’t knowingly waive his right to remain silent, State v. Schnick, 819 S.W.2d 330, 336 (Mo. 1991) especially since he volunteered to make the confession. State v. McCulley, 736 S.W.2d 504, 506 (Mo.App.1987).

Rank wrote the confession January 2 on a form captioned “VOLUNTARY STATEMENT” with a printed portion advising him of his right to remain silent. The facts created an inference his words and acts came after a knowing waiver. Tague, 444 U.S. at 471, 100 S.Ct. at 653. As such, there was a preponderance of evidence supporting the trial court’s decision to admit the confession. State v. Weston, 769 S.W.2d 164, 167 (Mo.App.1989).

II.

Relying on State v. Woods, 790 S.W.2d 253 (Mo.App.1990), and this court’s opinion in State v. Peters, 695 S.W.2d 140 (Mo.App.1985), Rank asserts the trial court erred when it admitted diary evidence because the police found this evidence only after making the initial warrantless entry into the defendant’s home in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which states under the Fourth Amendment, [A]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Payton creates a zone of privacy in an individual’s house. Peters, 695 S.W.2d at 144. Peters does, however, contain language that, “had the police requested, Bill may have consented to the warrant-less entry for the purpose of arrest for rape,” and the State here argues that the police had Rank’s consent to enter the home, thus making up for the lack of possessing a warrant. See also State v. Adams, 791 S.W.2d 873, 877 (Mo.App. 1990), cert. den. 498 U.S. 999, 111 S.Ct. 557, 112 L.Ed.2d 564 (1990). This question need not be decided however.

Assuming, without deciding the police improperly obtained the diary evidence, the defendant has the additional burden of showing that the evidence was prejudicial. State v. Rogers, 820 S.W.2d 567, 569 (Mo. App.1991). In a jury case where the evidence of guilt is strong, the reviewing court should consider error in the admission of evidence harmless. State v. Ford, 639 S.W.2d 573, 576 (Mo.1982). Here, the [233]*233child’s testimony, the admissions to the mother and the accused’s confession all established the same facts as those in the diary so the defendant did not suffer any prejudice. State v. Thomas, 820 S.W.2d 538, 542 (Mo.App.1991); State v. Draman, 797 S.W.2d 575, 577 (Mo.App.1990).

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Bluebook (online)
849 S.W.2d 230, 1993 Mo. App. LEXIS 265, 1993 WL 43587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rank-moctapp-1993.