State v. Franklin

Decision Date28 September 2004
Docket NumberNo. 25905.,25905.
Citation144 S.W.3d 355
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Douglas D. FRANKLIN, Defendant-Appellant.
CourtMissouri Court of Appeals

Appeal from the Circuit Court, Taney County, Tony W. Williams, J Cristy R. Meadows, Asst. Public Defender, Springfield, MO, for Appellant.

Rodney E. Daniels, Taney County Prosecuting Atty., Sherri L. Harris, Asst. Prosecuting

Atty., Forsyth, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Douglas Franklin ("Defendant") was convicted by a jury of committing the class A misdemeanor of possessing child pornography, in violation of § 573.037, and sentenced to serve one year in the county jail.1 On appeal, Defendant argues his conviction should be reversed because: (1) the trial court erred in admitting the videotape containing child pornography, which was found in Defendant's home by police while executing a search warrant; and (2) the trial court erred in overruling Defendant's motion to quash the entire venire because seven of the venirepersons had been exposed to a prejudicial comment during a prior, unsuccessful attempt to select a jury in Defendant's case. We affirm.

Since Defendant does not challenge the sufficiency of the evidence to support his conviction, it can be succinctly summarized. Deputies from the Taney County Sheriff's Department came to Defendant's home on October 19, 2001, to execute a search warrant because Defendant was suspected of making and selling methamphetamine ("meth"). During the search, the deputies found numerous items used to make meth. The house also contained hundreds of videotapes. While searching a television room in Defendant's home, deputies found 25-30 unmarked videotapes. They were aware that persons who illegally make meth frequently videotape themselves "cooking" the drug and then sell the videos to show others how to do so. The deputies began viewing these tapes to see if any of them contained videotaped "cooking" instructions. During this process, the deputies discovered one tape which contained images of a small child having oral and anal intercourse with an adult male.

Section 573.037.1 states that "[a] person commits the crime of possession of child pornography if, knowing of its content and character, such person possesses any obscene material that has a child as one of its participants or portrays what appears to be a child as an observer or participant of sexual conduct." At trial, Defendant stipulated that: (1) Defendant possessed the videotape; (2) the videotape portrayed what appeared to be a person under the age of 18 as a participant in sexual conduct; and (3) the videotape was obscene. The only disputed issue was whether Defendant knew the character and content of the material on the videotape. The jury decided that issue against Defendant and found him guilty of possessing child pornography. Additional facts necessary to the disposition of the case are included below as we address Defendant's two points on appeal.

Admission of the Videotape

Defendant's first point concerns the admission of the videotape containing child pornography into evidence. Prior to trial, Defendant filed a motion to suppress the videotape. The motion asserted, inter alia, that the videotape was unconstitutionally seized because it was not described in the warrant, and it did not come within the "plain view" exception to the warrant requirement.2

At the suppression hearing, Taney County Deputy David Freeman ("Freeman") testified he had received information from a task force officer that Defendant was making and selling meth at his home. Freeman went to Defendant's home to investigate. Once there, Freeman smelled the overwhelming odor of chemicals indicating a meth lab was present. He received permission from Defendant to enter the house. Inside, Freeman observed glassware, a can of acetone and a red substance believed to be iodine that, in the deputy's experience, were often used to make meth. Defendant was arrested, and Freeman obtained a warrant to search Defendant's home. The warrant authorized the seizure of "[c]hemicals, precursors, methamphetamine, paraphernalia, scales, substances and equipment used in the production of illegal drugs, any illegal drugs, computers, written records or documents used in the manufacture or distribution of illegal drugs[.]" Upon Freeman's return to the home with other deputies, they began searching for evidence. As noted above, there were hundreds of videotapes in the house. When executing search warrants during past investigations of meth labs, Freeman had found videotapes that contained recipes or instructions on how to make meth. He testified that "some of the major distributors or cooks in the past that we have arrested have videoed theirselves [sic] and videoed other people cooking meth, been known to sell those tapes or distribute them amongst their friends so they could use them to learn how to cook meth." Freeman and Deputy Luttrell found 25-30 unmarked tapes in Defendant's television room. They began placing them in a VCR and viewing them to see whether the tapes contained any videotaped instructions or recipes on how to make meth. While reviewing one of the videotapes, Freeman saw that it contained images of a small child having sex with a male. This videotape was seized and resulted in Defendant being charged with possession of child pornography.

Defendant argued to the trial court that the videotape should be suppressed because the warrant did not specify videotapes could be seized. The judge noted that, "if a search warrant allows you to search an area and while you're there you come upon the evidence to show some heinous crime.... I don't think the constitution protects a person from having that type of evidence." The court also stated that the videotape constituted "paraphernalia," which was specified in the warrant. The motion to suppress was overruled.

In Defendant's first point on appeal, he contends the trial court erred in admitting the videotape in evidence because this item was illegally seized from Defendant's home. Defendant claims the videotape was not within the scope of the warrant. The State argues that this point is not properly preserved for review and may only be reviewed for plain error. We agree. When the State offered the videotape in evidence, defense counsel stated that she had "no objection" to its admission. As the Eastern District of this Court recently stated:

Generally, a trial court's ruling on a pretrial motion to suppress cannot be asserted as a claim of error on appeal because the pretrial motion to suppress and the admission of the challenged evidence at trial are two separate procedures. State v. Williams, 9 S.W.3d 3, 11 (Mo.App.1999). "Absent an objection at trial to the admission of the evidence challenged in the motion, the issue is not preserved for appellate review." Id. In the present case, counsel for Coyne filed a motion to suppress any evidence resulting from the search of his vehicle. However, counsel failed to object at trial to the introduction of such evidence on the grounds that such evidence was the product of an illegal search and seizure. Therefore, we review the admission of the challenged evidence at trial for plain error.

State v. Coyne, 112 S.W.3d 439, 442-43 (Mo.App.2003). Since Defendant did not object to the admission of the videotape when it was offered at trial, we follow the same approach here and review only for plain error.

In order to be entitled to relief under the plain error rule, "[a] defendant must not only show prejudicial error occurred, but must also show that the error so substantially affected the defendant's rights that a manifest injustice or a miscarriage of justice would inexorably result if the error were to be left uncorrected." State v. Deckard, 18 S.W.3d 495, 497 (Mo.App.2000). The burden of proving the existence of such a manifest injustice or miscarriage of justice rests on defendant. See State v. Cole, 844 S.W.2d 493, 500 (Mo.App.1992). A request for plain error review requires us to go through a two-step analysis. State v. Stanley, 124 S.W.3d 70, 77 (Mo.App.2004). We first determine whether the asserted claim of plain error facially establishes substantial grounds for believing a manifest injustice or miscarriage of justice has occurred. Id. If facially substantial grounds are found to exist, we then determine whether a manifest injustice or a miscarriage of justice has actually occurred. Id. For the reasons set forth below, we conclude Defendant's claim of error fails to facially establish substantial grounds for believing a manifest injustice or miscarriage of justice has occurred because the videotape was in "plain view" when it was properly seized by deputies.

The "plain view" doctrine is one of the recognized exceptions to the warrant requirement imposed by the Fourth Amendment to the United States Constitution. See State v. Rutter, 93 S.W.3d 714, 724 (Mo. banc 2002); State v. Courtney, 102 S.W.3d 81, 87 (Mo.App.2003); State v. Gantt, 87 S.W.3d 330, 333 (Mo.App.2002). This doctrine applies when: (1) the officer is lawfully located in a place from which the object can be plainly seen; (2) the officer has a lawful right of access to the object itself; and (3) the incriminating character of the object is immediately apparent to the seizing officer. State v. Miller, 894 S.W.2d 649, 656 (Mo. banc 1995); see Gantt, 87 S.W.3d at 333; see also Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). We find that each element necessary to apply the "plain view" doctrine was present here.

First, the deputies lawfully entered Defendant's home pursuant to a warrant. The deputies entered the television room while executing the search warrant. Once deputies entered this room, the videotape was located in plain sight. It was lying right on top of a box containing 25-30 other unmarked videotapes.

Second, the deputies...

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7 cases
  • State v. Keeth
    • United States
    • Missouri Court of Appeals
    • August 30, 2006
    ...the pretrial motion to suppress and the admission of the challenged evidence at trial are two separate procedures." State v. Franklin, 144 S.W.3d 355, 358 (Mo.App.2004). Absent an objection at trial to the evidence challenged in the motion the issues are not preserved for appellate review. ......
  • State v. Stewart
    • United States
    • Missouri Court of Appeals
    • October 15, 2009
    ...We presume that the trial court's ruling was correct, and it is the defendant's burden to demonstrate otherwise. State v. Franklin, 144 S.W.3d 355, 361 (Mo.App.2004). B. During voir dire, the State asked the panel if any venireperson, member of their families, or close friend had ever "serv......
  • State v. Oplinger
    • United States
    • Missouri Court of Appeals
    • March 31, 2006
    ...we decline to review his point on appeal for plain error. See State v. Dillard, 158 S.W.3d 291, 302 (Mo.App.2005); State v. Franklin, 144 S.W.3d 355, 359 (Mo.App. 2004). The judgment of the trial court is SHRUM, P.J. and BARNEY, J., concur. 1. All references to statutes are to RSMo (2000). ......
  • State v. Davis
    • United States
    • Missouri Court of Appeals
    • December 6, 2016
    ...exceptions to the warrant requirement imposed by the Fourth Amendment to the United States Constitution." State v. Franklin , 144 S.W.3d 355, 359 (Mo. App. S.D. 2004). "This doctrine applies when: (1) the officer is lawfully located in a place from which the object can be plainly seen; (2) ......
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