Baker v. Com.

• Decision Date: 24 April 2003
• Docket Number: No. 2001-SC-0504-TG.,2001-SC-0504-TG.
• Citation: 103 S.W.3d 90
• Parties: Edward Leon BAKER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

103 S.W.3d 90

Edward Leon BAKER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2001-SC-0504-TG.

Supreme Court of Kentucky.

April 24, 2003.

Karen Maurer, Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler III, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Office of Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice GRAVES.

Appellant, Edward Leon Baker, was convicted in the Madison Circuit Court of two counts of using a minor in a sexual performance. He was sentenced to a total of thirty years imprisonment and appeals to this Court as a matter of right. Finding no error, we affirm.

On January 6, 2000, Appellant went to the photo counter at a local Kroger store and requested that a photograph be printed from a negative he gave the clerk, John Avera. Upon printing the photograph, Avera discovered that it was a picture of a young girl with her breasts exposed and her face covered by an "Elmo doll."¹ The girl was later identified as Appellant's twelve-year-old step-granddaughter, J.R. When Appellant returned to the counter to pick-up the photograph, Avera told him that it did not turn out. Avera thereafter contacted store security who then turned the photos over to the Richmond Police Department.

After identifying Appellant through the store's surveillance tapes, Detective Ellen Alexander obtained a search warrant for Appellant's home. Appellant was arrested at that time on two charges of Use of a Minor in a Sexual Performance, relating to the two pictures printed at the Kroger store. During the search, Detective Alexander seized a camera found in J.R's bedroom that contained a roll of undeveloped film. Police thereafter developed the film, finding nine other pictures of J.R. As a result, Appellant was charged with nine additional counts of Use of a Minor in a Sexual Performance.

Prior to trial, defense counsel moved to suppress the nine photographs upon which counts 3-11 were premised since the search warrant did not specifically authorize the seizure of the camera or undeveloped film. At the suppression hearing, Detective Alexander testified that the camera and film were taken after J.R., who lived with Appellant and was apparently present during the search, informed the Detective that there were some more nude pictures of her on the film. The trial court ruled that the seizure of the camera and film was proper, and denied the motion to suppress.

At the close of all evidence, and before the case was submitted to the jury, the trial court reduced the charges to two counts, merging counts 1 and 2, which were based upon the two pictures developed at the Kroger store, and counts 3-11, which were based upon the nine pictures developed from the roll of film seized during the search of Appellant's residence.

The jury found him guilty of both counts and he was sentenced to fifteen years on each, to run consecutively for a total of thirty years imprisonment.

I.

Appellant argues that the trial court erred in denying his motion to suppress the nine pictures developed from the roll of film since seizure of the camera and film was outside the scope of the warrant. Specifically, the warrant authorized the seizure of any:

Pornographic or obscene pictures of a child under the age of 16;

Pictures of a child without clothing in violation of the Kentucky Revised Statutes;

Pictures depicting a minor in sexual performance;

Any computers or computer generated materials which could contain child pornography; and

Video tapes containing child pornography.

Appellant is correct that the warrant did not designate the camera or film. However, Detective Alexander, the only witness who testified at the suppression hearing, explained that the camera was seized only after J.R. stated that the film contained more nude photographs of her taken by Appellant. Thus, the trial court concluded that since the warrant authorized the seizure of pornographic or obscene pictures, once J.R. informed Detective Alexander about the contents of the film, seizure of the camera was justified.

Appellant points out that J.R. subsequently testified at trial that the camera was, in fact, found in a kitchen drawer and that when she gave it to police, she did not know if it contained film. As such, Appellant believes that the trial court should have thereafter sua sponte reversed its suppression ruling since J.R.'s testimony differed from that of Detective Alexander. We disagree.

First, J.R. did not testify at the suppression hearing. The trial court's denial of Appellant's suppression motion was based upon the testimony presented during the hearing and will not be set aside if supported by substantial evidence. RCr 9.78. We conclude that it was. Furthermore, Appellant fails to note that J.R. also testified at trial that Appellant had threatened to kill her if he went to jail. We conclude that the trial court properly denied the motion to suppress based upon the evidence that was presented during the suppression hearing. The mere fact that J.R.'s testimony contradicted Detective Alexander's testimony did not warrant suppression of the photographs.

Although not presented to the trial court, Appellant also offers the novel theory that suppression was warranted because undeveloped film does not constitute a "photograph" within the context of KRS 531.300(5)², and thus was not evidence of the crime for which he was charged. Relying on chemistry principles, Appellant asserts that undeveloped film has no visual image until it undergoes a chemical reaction during the developing process. Albeit interesting, we find no merit in Appellant's proposition, and agree with the reasoning of the Florida District Court of Appeals in Schneider v. Florida, 700 So.2d 1239, 1240 (Fla.Dist.Ct.App.1997):

Webster's defines the term photograph as "a picture or likeness obtained by photography" with the root word photography defined as "the art or process of producing images on a sensitized surface (as a film) by the action of radiant energy and esp. light." Merriam Webster's Collegiate Dictionary 857 (10th ed.1993) (emphasis added). Hence, by definition, a photograph is the exposure of the film at the time the picture is snapped. A hard copy of the photograph is a print and the developed film would be a negative.

See also United States v. Smith, 795 F.2d 841 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987) (undeveloped film constitutes a "visual depiction" within the meaning of 18 U.S.C. § 2252(a), the Federal Sexual Exploitation Statute). Furthermore, the trial court found that seizure of the camera and film was proper and, once processed, the pictures developed from the film were certainly evidence of Appellant's use of a minor in a sexual performance.

II.

Next, Appellant argues that he was entitled to an instruction on the misdemeanor offense of possession of matter portraying a sexual performance by a minor, KRS 531.335(1), which reads as follows:

A person is guilty of possession of matter portraying a sexual performance by a minor when, having knowledge of its content, character, and that the sexual performance is by a minor, he knowingly has in his possession or control any matter which visually depicts an actual sexual performance by a minor person.

While maintaining that he was only in possession of "an undeveloped roll of nonimages that he might have later developed," Appellant argues that the jury could have found him guilty of possessing potentially obscene pictures and convicted him under KRS 521.335(1). We disagree.

Appellant admitted to staging the photographs of J.R., and thus ignores the plain language of KRS 531.310 which simply does not require a "finished product" to be guilty of using a minor in a sexual performance. As the Commonwealth points out, while a photograph may be considered a performance, any other visual representation before an audience involving sexual conduct by a minor is also a performance. KRS 531.310(5). Appellant's act of taking the pictures of J.R.'s exposed breasts and genitalia was sufficient to satisfy the statute. See also Alcorn v. Commonwealth, Ky.App., 910 S.W.2d 716 (1995).

An instruction on a lesser-included offense is required only if, considering the totality of the evidence, the jury could have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense. Clifford v. Commonwealth, Ky., 7 S.W.3d 371, 377-78 (1999); Bills v. Commonwealth, Ky., 851 S.W.2d 466 (1993). We do not believe the jury could have reasonably doubted Appellant's guilt on the greater offense and merely found him guilty of the misdemeanor offense.

III.

The eleven-count indictment charged Appellant with having committed the offense of Use of a Minor in a Sexual Performance, KRS 531.310, "by inducing [J.R.] ... to expose, in an obscene manner, [various female anatomy]." However, over defense objection, the trial court instructed the jury that it could find Appellant guilty if it believed "he knowingly employed, authorized, or induced [J.R.] to engage in a sexual performance or consented to [J.R.'s] engagement in a sexual performance[.]" Appellant argues that he was prejudiced by the additional language in the instruction because his sole defense was that he did not induce J.R., rather she "had shown an interest in modeling, acting, and singing" and that "she thought the picture taking was fun."

As the trial court noted during an extensive on-the-record conference regarding instructions, Appellant completely ignores the fact that consent of the minor is clearly not a defense. The statute is intended to protect minors from exploitation regardless of whether their participation is voluntary. Holbrook v. Commonwealth, Ky.App., 662 S.W.2d 484 (1984). "Indeed, `employs, consents to, authorizes or induces' all imply the possibility of voluntary...