Opinion
No. 107,203.
2013-08-16
STATE of Kansas, Appellee, v. Jerry SELLERS, Appellant.
Appeal from Saline District Court; Jerome P. Hellmer, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM:
A jury found Jerry Sellers guilty of possessing pornographic pictures and movies of children under 18 years of age over a 2–year period. Sellers challenges the sufficiency of the evidence to convict him. The evidence presented in the light most favorable to the State was more than sufficient to convict Sellers. The district court did not abuse its discretion when it denied Sellers' request for a mistrial. The district court properly sentenced him under the aggravated habitual sex offender statute. We decline Sellers' requests to apply Apprendi, counter and contrary to the way our Supreme Court has instructed. We affirm.
Facts
Jolana Sellers, Jerry Sellers' wife, discovered child pornography on her family's computer some time in 2005 while assisting her daughter with a school project. The pictures appeared on the computer when they were searching for “clip art” picture files. Jolana confronted her husband, Jerry Sellers, about the files and he said he ‘ “would try to assess them and get rid of them.” ‘ Jolana suspected Jerry of being responsible for the files. She made a copy of the pictures and kept the CD–R “in the top of the closet like behind a box” so that Jerry “couldn't deny that anything was ever on the computer.” Jolana testified generally about Sellers' computer habits: he was “always ... surfing the internet,” including “into the late evenings” and “one or two o'clock in the morning.”
Jolana took the CD–R to the Salina Police Department on August 31, 2007. Officer Moreland verified the CD–R contained images of child pornography and then obtained permission to retrieve the Sellers' computer. Detective Steinke from the Regional Criminal Forensics Laboratory (RCFL) analyzed a mirror image of the Sellers' computer's hard drive on which pornographic images and movies were discovered in active files. Steinke testified the CD–R contained copies of photographs that “still reside[d]” on the computer.
The amended second complaint charged Sellers with 38 counts of sexual exploitation of a minor. The affidavit describes the contents of the CD, which was used in the original complaint, as containing “photographs ... of prepubescent females and [adult] males engaged in sexual intercourse or sexual poses.” The evidence introduced at trial and retrieved from the computer generally conforms to those descriptions.
Sellers presented an alibi, including his military work records, to demonstrate that he was not present when some of the files were accessed or modified. At trial, Steinke explained that the lab was not able to verify the BIOS date and time on the computer tower because the computer would not boot. Steinke also explained various reasons why the “created,” “modified,” and “accessed” dates on a computer file are not reliable. For instance, one file had a “created” date that was after the “modified” date. The created, accessed, and modified dates for each count were read into the record.
The State also presented extensive evidence about the location on the hard drive where the active files were found, in hidden system folders that would not be easy for someone to find. All of the files were found under an “AFATDS” folder and subfolder, which Steinke did not recognize. Steinke looked up the acronym just prior to testifying using Google and discovered that it probably stood for “Advanced Field Artillery Tactical Data System.”
Sellers was convicted on June 17, 2011, of all 38 counts and timely appeals.
Analysis
Did the State Present Sufficient Evidence of Each Element of Sexual Exploitation of a Minor for a Jury to Find Sellers Guilty Beyond a Reasonable Doubt?
Sellers argues there was insufficient evidence to convict him and the State “failed to prove that [ ] Sellers intentionally possessed” the images found on the family computer.
Intentional Possession
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ “ [Citation omitted.]
“During our review, we do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. [Citation omitted.] Moreover, a conviction of even the gravest offense ‘can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. [Citations omitted.]’ “ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Sexual exploitation of a child is defined as:
“[P]ossessing any visual depiction, including any photograph, film, video picture, digital or computer generated image or picture ... where such visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender....” K.S.A.21–3516(a)(2).
The jury was instructed the State needed to prove Sellers “intentionally possessed” the photographs and movies in order to find him guilty.
On appeal, Sellers highlights the exculpatory testimony: he did not admit to knowing the pictures were on the computer, the computer could have been accessed by anyone, and several of the files had access dates that coincided with Sellers' deployments or work assignments. However, there is ample circumstantial evidence for the jury to have drawn the inference the photos were downloaded by Sellers: he was often on the computer late at night, he was knowledgeable about computers and could have hidden the files in the hidden folders, the children were usually supervised on the computer, the sexually explicit search terms that Jolana Sellers blocked from a file-sharing application had been unblocked, and Sellers eventually told Jolana he was “sorry for everything.”
In the light most favorable to the prosecution, there was sufficient evidence for the jury to determine Sellers downloaded the photographs and movies and find him guilty beyond a reasonable doubt. The State's evidence, both direct and circumstantial, reflects Sellers knowingly and intentionally possessed the files.
Prurient Interest
Sellers next alleges there was no evidence he possessed the photographs and movies for his own prurient interest or sexual desires. The standard of review remains the same, “in the light most favorable to the prosecution and determining whether a rational fact finder could have found the defendant guilty beyond a reasonable doubt.” State v. Frye, 294 Kan. 364, 375, 277 P.3d 1091 (2012).
Here, the jury was faced with ample direct and circumstantial evidence that Sellers possessed the photographs and movies for his own prurient interest or sexual gratification. The pictures and videos are graphic depictions of sex between adult males and prepubescent females. The filenames also contain numerous references to sex, rape, and sex-related themes.
It was reasonable, considering the pictures and videos along with the descriptive file names on Sellers' computer, for the jury to find Sellers possessed the photographs and movies for his own prurient interest or sexual desires. The State's evidence was more than sufficient to establish Sellers possessed the photographs and movies for his own prurient interest or sexual desires.
Did the District Court Err in Denying Sellers' Motion for a Mistrial?
On appeal, Sellers argues “the State failed to disclose the full investigation and the results of the investigation of its computer expert” because Detective Steinke testified about a Google search of the acronym “AFATDS” which was previously unknown to the defense.
“[A] district court's ruling on a motion for mistrial is reviewed under an abuse of discretion standard. A court abuses its discretion when no reasonable person would take the same view. A defendant must show substantial prejudice before this court will find the district court abused its discretion in denying a motion for mistrial. [Citations omitted.]” State v. Albright, 283 Kan. 418, 425–26, 153 P.3d 497 (2007).
Under K.S.A. 22–3212(a)(2), the State,
“[S]hall permit the defendant to inspect ... results or reports ... of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.”
Sellers does not argue that the failure to disclose the results of the Google search prejudiced the preparation of his defense; instead, he argues that it was per se misconduct as a violation of K .S.A. 22–3212(a)(2) and that the misconduct was prejudicial because it provided “the only evidence” of “a tenuous link between the location of the inappropriate files and [ ] Sellers.”
The district court denied the motion for mistrial, ruling that the State had not “violated the [discovery] order in any manner having turned over that information [the list of filenames found on the computer] to the defense.” Although the RCFL's analysis of the hidden files and unallocated sectors on a computer clearly fall into the category of “scientific tests or experiments” contemplated by the statute, the district court ruled that it was only “logical” and “reasonable” for an expert to “review all information contained in that file” in order to prepare for trial.
A computer expert using Google to look up an acronym that was provided to the defense in order to prepare for trial is reasonably distinguishable from the “scientific tests or experiments” contemplated by the statute. It cannot be said that no reasonable person would take the same view. Therefore, the district court did not err in denying Sellers' motion for mistrial.
Was Sellers Denied His Right to a Fair Trial Based on Cumulative Error?
On appeal, Sellers argues that “even if alone none of the errors asserted ... are found to constitute reversible error, their cumulative effect was to deny [ ] Sellers a fair trial.”
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of a defendant's convictions. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3d 1105 (2009).
Sellers does not indicate how he was prejudiced by the accumulation of alleged trial errors. To sustain his argument, Sellers would have to show that “[t]he identified errors ... overtake the strength of the evidence against [him].” See State v. Marks, 297 Kan. 131, 298 P.3d 1102, 1117 (2013).
The evidence against Sellers was substantial and compelling, and we find no error on the part of the district court. When there are no errors, there can be no cumulative error.
Does Sellers' Conviction Violate the Ex Post Facto Clause of the United States Constitution?
On appeal, Sellers argues the jury did not specifically find he committed the crimes alleged in counts 1–38 prior to or after July 1, 2006, when the aggravated habitual sex offender statute went into effect. He asserts that sentencing him under the statute violates the Ex Post Facto Clause of the United States Constitution.
“When the application of a statute is challenged on constitutional grounds, this court exercises an unlimited, de novo standard of review.” State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008) (citing State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 [1996],cert. denied521 U.S. 1118 [1997] ).
We acknowledge an ex post facto violation occurs when “a new law is retroactively applied to events that occurred before its enactment and the new law disadvantages the offender affected by it. [Citation omitted.] All criminal offenses, except those considered continuing offenses, are committed when every act which is an element of the offense has occurred. [Citations omitted.]” State v. Smith, 268 Kan. 222, 232, 993 P.2d 1213 (1999).
For example, using a law enacted after the expiration of a previously run statute of limitations to revive the barred prosecution violates the Ex Post Facto Clause. State v. Garcia, 285 Kan. 1, Syl. ¶ 2, 169 P.3d 1069 (2007). On the other hand, an offender registration requirement has been considered remedial in nature and did not violate the ex post facto rule because it was not punitive. State v. Myers, 260 Kan. 669, 694–95, 923 P.2d 1024 (1996).
The statute in question, K.S.A. 21–4642, now K.S.A.2012 Supp. 21–6626, was enacted by our legislature on July 1, 2006, in the middle of Sellers' criminal activity.
The statute defines punishment for multiple criminal sex act convictions. The record on appeal, through Sellers' presentence investigation, reflects he has four prior convictions. Two for aggravated indecent liberties with a child in violation of K.SA. 21–3504 on May 15, 2008, see State v. Sellers, 292 Kan. 346, 253 P.3d 20 (2011), and two for indecent liberties with a child in violation of K.S.A. 21–3503 on November 18, 2008. This conviction for possession of pornographic pictures and mo vies between August 31, 2005, and August 31, 2007, occurred on June 17, 2011. He continued possessing the pornographic material on and after July 1, 2006, as the computer and the CD–R made by his wife with the same pictures contained on the computer were given to the police on or about August 31, 2007. The record reflects all of these files were last accessed on July 11, 2007, with the exception of count 13 which was accessed on August 2, 2007. Steinke testified the dates on the computer were not reliable since the bios could not be opened and reviewed. Steinke testified the dates on the computer could be manipulated, but they still reflected the files were active. We acknowledge the dates given for the access dates may have conflicted with Sellers' alibi dates, but whether Sellers continued to possess the files on his computer after July 1, 2006, is a sufficiency of the evidence issue for the jury to weigh during its deliberations.
The Supreme Court in State v. Zabrinas, 271 Kan. 422, 439, 24 P.3d 77 (2001), said: “This is more properly considered as a continuing conduct case where there is but a single count or charge, with all evidence used to establish the requisite intent and knowledge to prove a violation of 21–3516(a)(2).”
With its verdict, the jury found Sellers was possessing the pornographic material for 11 months before July 1, 2006, and for 13 months on and after July 1, 2006. During this 2–year period of possessing the material, it remained hidden in active files on his computer, available at any time for him to access for his prurient interest. “Possess” and “Possession” are defined:
“possess, ... To have in one's actual control; to have possession of.”
“possession.... The fact of having or holding property in one's power; the exercise of dominion over property.... 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.” Black's Law Dictionary 1281 (9th ed.2009).
We choose to follow Justice Larson's lead in Zabrinas that possession of sexually explicit material is a continuing conduct crime. Sellers could have looked at the sexually explicit material and deleted it. Instead, Sellers downloaded it and stored it in hidden files on his computer for his use and benefit any time he chose to open them. This reflects the continuing conduct of possessing the sexually explicit material.
With his continued possession of the sexually explicit material after July 1, 2006, Sellers' prior conviction requires the aggravated habitual sex offender statute be imposed in this matter. Sellers' sentencing under the aggravated habitual sex offender statute does not violate the Ex Post Facto Clause of the United States Constitution.
Was Apprendi Properly Applied?
Sellers' criminal history score was A based on at least two prior person felonies.
On appeal, Sellers asserts that this information was not submitted to the jury and proved beyond a reasonable doubt, and therefore using the information to enhance his presumptive sentence violates his Sixth and Fourteenth Amendment rights under the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Our Supreme Court has interpreted Apprendi not to apply to enhancements within the framework of the presumptive sentencing grid. State v. Fewell, 286 Kan. 370, 396, 184 P.3d 903 (2008) (reaffirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ). This court is bound to follow our Supreme Court's interpretation, absent some indication they are departing from its previous position. See State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869 (2007), rev. denied 284 Kan. 949 (2007).
Sellers acknowledges his Apprendi challenge has been settled by our Supreme Court but includes it to preserve the issue for federal review.
Conclusion
Sellers continued to have the active computer files on his computer with sexually explicit material available to him for his use through its seizure in August 2007. The evidence presented to the jury was more than sufficient to support the conviction for possessing sexually explicit material from August 31, 2005, to August 31, 2007. The district court properly denied the motion for mistrial and did not abuse its discretion. Although we agree the penalty changed after July 1, 2006, Sellers' continued possessing and viewing the sexually explicit material after July 1, 2006, eliminating his ex post facto claim. Under Kansas law, Sellers' sentence did not violate Apprendi.
Affirmed.