State v. Simmons
| Decision Date | 25 March 2020 |
| Docket Number | Appellate Case No. 2016-001975,Opinion No. 27959 |
| Citation | 841 S.E.2d 845,430 S.C. 1 |
| Court | South Carolina Supreme Court |
| Parties | The STATE , Respondent, v. Michael Scott SIMMONS , Appellant. |
Appellate Defender Susan B. Hackett, of Columbia, for Appellant.
Attorney General Alan M. Wilson and Senior Assistant Deputy Attorney General William M. Blitch, Jr., both of Columbia, for Respondent.
Appellant Michael Simmons was convicted of six counts of sexual exploitation of a minor in the second degree pursuant to section 16-15-405 of the South Carolina Code of Laws. Simmons contends this provision is unconstitutionally overbroad because it criminalizes conduct that is not limited to visual representations of actual minors or obscenity, and thus violates the First Amendment. Additionally, Simmons contends the trial court erred in refusing to suppress information gathered pursuant to a search warrant supported by allegedly stale information and in finding defense counsel opened the door to evidence of suspected child pornography. While we uphold the constitutionality of section 16-15-405 and the validity of the search warrant, we reverse Simmons' convictions because the trial court erred in finding defense counsel opened the door.
In November 2013, Detective Kevin Murphy of the Berkeley County Sheriff's Office began investigating computers engaged in file sharing of images and videos containing child pornography. Through specially designed software, Murphy identified the IP address of a computer he suspected received six videos of child pornography and determined the address was assigned to Time Warner Cable. Murphy then downloaded the six videos onto a disk as part of his investigation. Four months later, Murphy contacted the Attorney General's office, which obtained the subscriber information by court order. This information revealed the computer was connected to the account of Ron and Wendy Doiron, who lived in Columbia with Ron's teenage son, two other young children, and Simmons. Simmons joined the army in 2006 and finished his service at Fort Jackson. After leaving the army, he remained in Columbia, worked for Time Warner Company, and moved in with the Doiron family.
Murphy contacted investigators with the Columbia Police Department, who obtained a search warrant for the residence in June 2014 based on the information discovered seven months earlier. During the search, law enforcement seized twenty electronic devices, including four items found in Simmons' bedroom. Among the four devices were a desktop computer and an external hard drive, which are the focus of this appeal.
Jon VanHouten, a computer forensic examiner, investigated the devices. VanHouten did not review each one in the same manner; instead, he employed a "full examination" on the devices found in Simmons' bedroom, including the desktop and external hard drive, and a "preview" on the remaining items seized from the home. According to VanHouten, a forensic preview is essentially a surface-level review of a device, whereas a full examination uses forensic software to examine a device in greater detail. During his examination of Simmons' desktop computer, VanHouten was unable to find any videos or images depicting child pornography, including the six videos Murphy traced to that IP address. However, VanHouten was able to find references to those videos, which suggested the files previously had existed on the desktop. Additionally, he found search terms commonly associated with child pornography in the internet search history and files he thought related to child pornography based on their names.
VanHouten also performed a full examination of the external hard drive purportedly attached to Simmons's desktop and found eight videos of what he believed to be child pornography. These videos were recovered in the recycle bin folder on the hard drive and were included with other videos depicting adult pornography. VanHouten did not find any evidence of child pornography on the remaining devices.
The Doirons informed law enforcement they did not know anything about the images or videos, and investigators quickly focused on Simmons. He denied downloading or viewing the material, but he did admit he used a file sharing program to illegally download music and Blue-ray movies, which was the same type of file Murphy used to download the six videos. Simmons also acknowledged the computer and external hard drive at issue belonged to him. However, Simmons contended he frequently permitted others to use his computer, and that it was not password protected. Further, Simmons noted the Doirons' teenage son often accessed his computer, including to watch videos. The son initially denied downloading illegal movies through file sharing and viewing any type of pornography, but he later conceded he had previously done both. The son testified that he used Simmons' computer but claimed he never did so alone.
Simmons was charged with six counts of sexual exploitation of a minor in the second degree for each of the six videos Murphy downloaded that corresponded with the desktop computer's IP address. However, the State did not charge Simmons with the eight videos found on the external hard drive. Simmons made several pre-trial motions, seeking to: (1) declare section 16-15-405 unconstitutionally overbroad; (2) suppress the evidence seized pursuant to the search warrant because the information in the affidavit was stale; and (3) suppress evidence of the eight videos contained on the external hard drive as unfairly prejudicial and improper character evidence. The trial court denied the first two motions, finding the statute was constitutional and that the seven-month delay between the discovery of suspected child pornography and the issuance of the search warrant did not render the information stale.
Regarding suppression of the eight videos on the external hard drive, the State initially stated during pretrial motions that it would not play them to the jury. Instead, it sought to ask VanHouten whether he recovered videos on any device to demonstrate Simmons would intentionally seek out child pornography before deleting it to avoid detection. The State asserted this testimony would help explain why the six videos that Murphy downloaded were not found on the desktop. Defense counsel contended the State was attempting to introduce improper character evidence by admitting evidence of uncharged acts, especially since it would shift the jury's focus away from the conduct actually charged. The trial court agreed with Simmons and excluded any discussion pertaining to the videos recovered from the external hard drive.
VanHouten confirmed he did a full examination on the desktop computer even though he did not discover any videos. However, he continued to investigate the computer because "[t]his was one of the devices that the submitting agent or investigator said was pertinent to his case." Regarding the other computers seized from the home, he noted he only did a preview, and he did not perform a full examination on those devices because he did not find anything suspicious. Specifically, he noted on direct:
On cross, VanHouten readily acknowledged the investigating officer directed him to focus on certain items. Defense counsel categorized the devices as "focused," which consisted of those found in Simmons' bedroom and were fully examined, and "nonfocused," which were the other items seized in the home and subject to only a preview. After defense counsel finished cross-examination, the State asserted the door had been opened to the introduction of the eight videos found on the hard drive because defense counsel's questions implied that VanHouten did not discover child pornography on any of the focused items. In response, defense counsel noted he and the solicitor had agreed off the record to not discuss the external hard drive, and he asked the same question the State did during direct—whether child pornography was found on the desktop.
The trial court agreed with the State, finding defense counsel's cross examination implied that VanHouten did not find any videos of child pornography on the focused items, which was not the case. Further, the court relied on the fact that the external hard drive was connected to Simmons' computer, although that was arguably disputed. Overall, the court noted the testimony regarding the external hard drive went "to the full and complete picture of the forensic computer examination performed by ... VanHouten on the items that were recovered during the course of the search warrant." Based on the court's...
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