Cummings v. State

• Decision Date: 12 June 2003
• Docket Number: No. CR 03-9.,CR 03-9.
• Citation: 110 S.W.3d 272
• Parties: James CUMMINGS and Donna Cummings v. STATE of Arkansas.
• Court: Arkansas Supreme Court

110 S.W.3d 272

James CUMMINGS and Donna Cummings v. STATE of Arkansas.

No. CR 03-9.

Supreme Court of Arkansas.

June 12, 2003.

COPYRIGHT MATERIAL OMITTED

James W. Massey, Public Defender, Dardanelle, for appellant.

Mike Bebee, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., for appellee.

JIM HANNAH, Justice.

A Logan County jury convicted appellant James Cummings of (1) producing, directing, or promoting a sexual performance, and (2) permitting a child to engage in sexually explicit conduct for use in visual or print medium and sentenced him to thirteen years' incarceration in the Arkansas Department of Correction. The jury convicted appellant Donna Cummings of permitting a child to engage in sexually explicit conduct for use in visual or print medium and sentenced her to ten years' incarceration.

The appellants argue that: (1) the trial court erred by denying a motion to suppress evidence obtained through the execution of a nighttime search; (2) there is not sufficient evidence to support the verdict; (3) Ark.Code Ann. § 5-27-303(b) (Repl.1997) is a lesser-included offense of Ark.Code Ann. § 5-27-403(a) (Repl.1997); therefore, the trial court erred by submitting both charges to the jury; and (4) the State's showing of a portion of a home video which depicted Donna stripping and masturbating was improper character evidence.

We find no error and affirm. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(6).

Facts

Officer Lonnie Whitehead of the Magazine Police Department testified that Alfreda Robinson, a school counselor at Magazine High School, received an anonymous phone call from an individual who told her that one of the students at the junior high school had a "paid website" on the Internet. Whitehead stated that Robinson was concerned about the website and informed Clarence Renfro, the school principal. After accessing the website, Renfro contacted Whitehead and asked him to initiate an investigation.

Whitehead testified that he accessed the website, cindysworld2000.com, and that since full access to the website required membership, he was only able to view the home page. He testified that on the home page, "there were several pictures showing this girl in various stages of undress where you could see partial breast and very revealing swimwear, thong panties, and things like that." The website depicted photographs of C.G., who is Donna's daughter and James's stepdaughter.

Whitehead testified that, after viewing the pictures, he and other officers went to the appellants' home in Magazine. Whitehead testified that he and the officers talked to James about the website, and that James showed the officers portions of the website. In addition, James provided the officers with his user name and password so the officers could access the entire website. Whitehead testified that James "stated that he'd taken the pictures and put them on the website." Whitehead also stated that James thought "[s]ome of them ... were fairly revealing so he posted them — he put them on the computer, but did not post them to the website itself."

After speaking to James, Whitehead and the other officers went to the Booneville Police Department where, using the password and user name provided by James, they accessed the website. Whitehead testified that he showed the pictures to Logan County Deputy Prosecutor Brian Mueller, and that Mueller thought the pictures constituted enough evidence to get a search warrant for the appellants' home. Whitehead's affidavit for search warrant stated, in relevant part:

On 10-11-01, I, Lonnie Whitehead, ... received a request to initiate an investigation of child sexual exploitation. On 10-10-01 the school Counselor, Alfreda Robinson, received an anon. call from a man advising that a student at the Jr. High had a paid web site on the internet with pictures posted where she was wearing underwear and thong panties. He advised the counselor of the juveniles name. On 10-1-01[sic] Clarence Renfroe, Principal advised this officer and the Booneville Police Dept., specifically Jackie Young, of this web site. Clarence Renfroe stated that he had viewed this web site ... and indicated that it contained sexually suggestive pictures. Officers Young and Marshal Whitehead brought this web site up and viewed many of these pictures. These pictures showed the juvenile in various states of undress. Some pictures showed partial breasts and buttocks and in sexually suggestive positions.

On 10-11-01, at 3:55PM, Sheriffs Deputy's Albert Brown and Theo Capes and Marshal Whitehead went to 97 West Ellington street in Magazine, Ar. Upon their arrival James Cummings met them out side of the house. After initial conversation and questions about the web site, Deputy Al Brown asked to see the web site in the home. They entered into the home through the kitchen door and went to the computer located to the left of the door in an alcove off of the kitchen. James Cummings sat at the computer and pulled up the web site and showed them various pictures of the juvenile. James Cummings stated that he had taken these pictures and he thought some pictures were too revealing, although he put them on the computer he did not post them to the web site.

It is believed that these pictures/videos computer and camera will be removed or destroyed as James Cummings is now aware of this investigation. Due to the fact that these items may be destroyed or concealed, these officers specifically request that they be allowed to conduct a night time search. A detailed description of the items to be seized are as follows, video tapes, magazines depicting pornographic material, photographs, computer, and all hardware connected to the computer, floppy drives, discs, Zip drives, discs, CD drives, CD's Tape back up drives, tapes, sticky notes, digital camera and tapes, video camera digital, books located on the premises.

Based on the foregoing affidavit, the magistrate issued a search warrant and authorized its execution at any time. Immediately after obtaining the search warrant, Whitehead and other officers went to the appellants' home and seized evidence including three videotapes which included scenes of both C.G. and Donna in the nude.

Prior to trial, the appellants filed a motion to suppress the evidence seized at their home. They argued that the officers executed a nighttime search based on conclusory language contained in the affidavit for search warrant. The trial court denied the motion to suppress.

At trial, a videotape depicting Donna performing a striptease in front of her minor children was admitted without objection. After the videotape was admitted, the videotape was played and only then did defense counsel object, arguing that the portions of the tape that did not involve C.G. were not relevant and unduly prejudicial. The trial court overruled the objection as untimely.

At the end of trial, defense counsel argued that the jury should be instructed that Ark.Code Ann. § 5-27-303(b) is a lesser-included offense of Ark.Code Ann. § 5-27-403(a). Defense counsel moved for the trial court to instruct the jury that, since one of the offenses for which the appellants was charged was a lesser included offense, the jury could only convict on one of the two charges. The trial court denied the motion.

Sufficiency of the Evidence

The appellants challenge the sufficiency of the evidence supporting their convictions. Although the appellants raise this issue second on appeal, double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the other issues on appeal. See Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. See Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). We will affirm a conviction if substantial evidence exists to support it. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. See id.

"Any parent, legal guardian, or person having custody or control of a child who knowingly permits such child to engage in, or to assist any other person to engage in sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct shall be guilty" of a felony. Ark.Code Ann. § 5-27-303(b). "Lewd exhibition of: [t]he genitals or pubic area of any person; or [t]he breast of a female" constitutes "sexually explicit conduct". Ark.Code Ann. § 5-27-302(E)(i),(ii) (Repl.1997).

"It is unlawful for any person if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than seventeen (17) years of age." Ark.Code Ann. § 5-27-403(a) (Repl.1997). "`Performance' means any play, dance, act, drama, piece, interlude, pantomime, show, scene, or other three-dimensional presentation or parts thereof whether performed live or photographed, filmed, videotaped, or visually depicted by any other photographic, cinematic, magnetic, or electronic means." Ark. Code Ann. § 5-27-401(1) (Repl.1997). "Sexual conduct" means, inter alia, "lewd exhibition of the genitals or pubic area of any person or the breasts of a female." Ark.Code Ann. § 5-27-401(3) (Repl.1997).

At trial, the State introduced photographs and videotapes seized from the appellants' home pursuant to a search warrant. C.G., who was thirteen years old at the time of the trial, testified that she posed for photographs that James took for a website called cindysworld2000.com. The photographs depict C.G. in various stages of undress, posing in a suggestive manner. In one of the photographs, C.G.'s breast is partially exposed. In another photograph, C.G.'s pubic area is exposed.

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