United States v. Brumfield

• Decision Date: 13 September 2012
• Docket Number: No. 10–3607.,10–3607.
• Citation: 686 F.3d 960
• Parties: UNITED STATES of America, Appellee, v. Phillip M. BRUMFIELD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

686 F.3d 960

UNITED STATES of America, Appellee,

v.Phillip M. BRUMFIELD, Appellant.

No. 10–3607.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 11, 2012.

Filed: July 31, 2012.

Rehearing and Rehearing En Banc Denied Sept. 13, 2012.

Adam D. Woody, Law Offices of Dee Wampler & Joseph Passanise, Springfield, MO, argued (Dee Wampler, on the brief), for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., Kansas City, MO, Randall D. Eggert, Asst. U.S. Atty., Springfield, MO, on the brief), for appellee.

Before BYE, SMITH, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

A jury convicted Phillip Brumfield of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court ¹ sentenced him to 120 months' imprisonment. Brumfield appeals his conviction, challenging several of the district court's evidentiary rulings. We affirm.

I.

On May 10, 2008, Keith Bell reported to police that his neighbor, Phillip Brumfield, had exposed himself and masturbated outside Brumfield's home. Just over two weeks later, Deputy Sheriff Mike Sallee of Polk County, Missouri, contacted Bell at his residence and spoke with his 14 year-old daughter, A.B. A.B. informed police that in April 2008, Brumfield asked her if she wanted to come to his house and have sex with him while he videotaped it.

Based on this information, Sallee applied for and obtained a search warrant for Brumfield's residence. During a search of the house on May 28, 2008, Sallee and Deputy Sheriff Ron Lovell seized 45 compact disks, one camcorder, and four computers. Sallee and Lovell took this evidence back to Sallee's office in the Polk County Sheriff's Department. At some point, the evidence was taken to the department's evidence room. On June 2, 2008, Sallee delivered the evidence to Sergeant Dan Nash of the Missouri State Highway Patrol, who was to assist in the investigation. Nash secured the evidence through the state highway patrol and sent the computers to a forensic examiner, Paul Cordia. Cordia examined the computers and discovered child pornography on two of them. In total, the two computers had 171 images of child pornography. Sergeant Nash also discovered numerous images of child pornography on the compact disks seized at Brumfield's home.

On May 14, 2009, Brumfield was indicted on one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The next day, police officers searched Brumfield's home pursuant to a federal search warrant and seized a number of documents, one of which was written by Brumfield and discussed childhood sex and sexuality.

At one point in the investigation, Brumfield met with police officers, declared that two of the computers had no items of evidentiary value, and asked why the police had not returned those two computers to him. When asked why he thought there were items of evidentiary value on the other two computers, Brumfield “went into a dissertation” about the federal law on child pornography, and stated that all the Internet sites he had visited contained disclaimers that all models were over the age of 18. Brumfield also stated that if child pornography was on his computers, then it was placed there by his wife or someone else. He also admitted to transferring content from his computer to the computer disks that were seized from his house.

At trial, Brumfield denied downloading all but two of the pornographic images. Brumfield acknowledged possession of two of the images, but said that he did not believe the images depicted children under the age of 18. At the conclusion of the trial, the jury returned a verdict of guilty.

II.

Brumfield contends that four of the district court's evidentiary rulings constitute reversible error. We review a district court's evidentiary rulings for abuse of discretion. United States v. Shillingstad, 632 F.3d 1031, 1034 (8th Cir.2011).

A.

We first address Brumfield's argument that the district court erred in admitting testimony from A.B., a minor, that Brumfield propositioned her to have sex with him while he videotaped it. Prior to trial, the government argued that the evidence was admissible under Federal Rule of Evidence 404(b) as proof of Brumfield's knowledge and intent. The district court ruled that the testimony was admissible, and A.B. testified during the government's case-in-chief.

Rule 404(b) prohibits the admission of evidence of a defendant's prior bad acts to prove character or propensity to commit crime, but it permits such evidence for other purposes, such as to prove knowledge or intent. United States v. Winn, 628 F.3d 432, 436 (8th Cir.2010). Evidence of prior acts is admissible if it satisfies four criteria. It must be probative of a material issue other than character. Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The prior act must be similar in kind and reasonably close in time to the crime charged. United States v. Cole, 537 F.3d 923, 928 (8th Cir.2008). The prosecution must present sufficient evidence from which a jury could find by a preponderance of the evidence that the prior act occurred. Huddleston, 485 U.S. at 690, 108 S.Ct. 1496. And under Rule 403, the probative value of the evidence cannot be substantially outweighed by the danger of unfair prejudice.

The testimony that Brumfield propositioned a minor to have sex with him and to help him produce child pornography was relevant to the material issues of Brumfield's knowledge and intent to possess child pornography. Brumfield placed his state of mind at issue by denying that he possessed many of the images and by denying knowledge that two images depicted minors. Evidence that Brumfield sought to produce child pornography was thus relevant to show that he intended to possess child pornography and knew that the images depicted minors.

The evidence also meets the remaining requirements for admission. The act was similar in kind and reasonably close in time to the crime charged. The incident involved the attempted production of child pornography within months of the discovery of the pornographic images on Brumfield's computers. The prosecution presented sufficient evidence for a jury to conclude by a preponderance of the evidence that Brumfield committed the act, as A.B. testified directly about the incident. Finally, the danger of unfair prejudice did not substantially outweigh the probative value of A.B.'s testimony. The evidence was highly probative of Brumfield's knowledge and intent to possess child pornography, and any prejudicial effect was lessened by the court's instruction to the jury to consider the evidence only to evaluate Brumfield's state of mind or intent, and not to determine his innocence or guilt of the charged offense. See United States v. Yielding, 657 F.3d 688, 702 (8th Cir.2011). We therefore conclude that the district court did not abuse its discretion in admitting A.B.'s testimony.

B.

Brumfield next contends that the district court made two erroneous evidentiary rulings during the government's cross-examination of him. He complains that the court improperly permitted the government to question him about an incident in which he exposed himself and masturbated outside his home, and erroneously permitted the government to introduce a document, written by Brumfield, that discusses child sex. The government responds that Brumfield's testimony on direct-examination opened the door to the admission of this evidence.

The doctrine of opening the door allows a party to present testimony, which otherwise would be inadmissible, to “explain or contradict the testimony offered by the opposing party on direct examination.” United States v. Durham, 868 F.2d 1010, 1012 (8th Cir.1989) (internal quotationomitted). It can be used to rebut the impression left by the opposing party's own testimony. Wright v. Ark. & Mo. R.R. Co., 574 F.3d 612, 619 (8th Cir.2009). It cannot, however, “be subverted into a rule for injection of prejudice.” Durham, 868 F.2d at 1012 (internal quotation omitted).

We first...