George v. State
| Decision Date | 17 December 2003 |
| Docket Number | No. CA CR 02-1001.,CA CR 02-1001. |
| Citation | 140 S.W.3d 492,84 Ark.App. 275 |
| Parties | Glenn E. GEORGE v. STATE of Arkansas. |
| Court | Arkansas Court of Appeals |
Appeal from the Circuit Court, Garland County, John Homer Wright, J T.B. Patterson, Jr., P.A., by: T.B. Patterson, Jr., Hot Springs, for appellant.
Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.
This case arises from the criminal conviction of Glenn E. George of nine counts of possessing visual or print medium depicting sexually explicit conduct of minors. The conviction resulted in a sentence of ninety years' imprisonment and $78,000 in fines. Appellant argues that the trial court erred in denying (1) his motion to suppress evidence seized pursuant to an invalid warrant; (2) his motion to suppress evidence not described in the warrant or in the affidavit incorporated into the warrant; (3) his motion to dismiss the charges for violation of the speedy-trial rule; and (4) his motions for directed verdicts for failure of proof on three counts. We hold that the search warrant was invalid because the affidavit upon which it was based failed to state a time reference for when the criminal activity occurred or the contraband to which it referred was observed. Accordingly, we reverse and remand.
In this case, the affidavit for a search warrant stated that B.T., fourteen years of age, reported to her mother on March 21, 2001, that appellant had provided her and some of her friends with alcohol and that she had seen nude photographs of girls about B.T.'s age in his apartment. On March 27, 2001, Hot Springs Police Department Detective Paul Norris interviewed B.T. and her mother and learned that, while in appellant's apartment, B.T. saw photographs of nude girls that she knew to be fourteen to fifteen years of age on appellant's computer. Subsequently, Norris also interviewed J.T., who confirmed that appellant had supplied the girls with alcohol at his apartment. J.T also told Norris that she had found a video on appellant's computer, while she was there, depicting a friend named K.T. dancing nude.
Norris then wrote an affidavit for a search warrant. In that affidavit, Norris alleged that at appellant's specifically described residence,
there is now being concealed certain property, namely: the evidence associated with the producing, directing, or promoting sexual performances and employing or consenting to use of child in sexual performances.
Which are[:] evidentiary items in a sexual exploitation investigation and in direct violation of Arkansas State Statute 5-27-402 and 5-27-403.
And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: That on 03-22-01 [B.T.'s mother] reported her fourteen year old daughter, [B.T.], revealed to her Glenn George provided alcohol to her and other friends and that she observed nude photographs of other girls she knows to be age fourteen or fifteen. [B.T.] was interviewed and stated Glenn George gave her an alcoholic beverage to drink and she saw nude photographs on George's computer of girls she knows to [be] fourteen or fifteen years old. That a friend of [B.T.'s], [J.T.], was also interviewed and stated George provided her with an alcoholic beverage and she found a video on George's computer of a friend, [K.T.], dancing nude.
The affidavit was signed by Norris. The issuing magistrate signed below, with a handwritten date of March 26, 2001. The affidavit was file-stamped April 2, 2001. The warrant itself, however, also signed by the magistrate, shows the date of April 27, 2001, but was also filed on April 2, 2001. In relevant parts, the warrant reiterated the descriptions and allegations contained in the affidavit, and otherwise expressly incorporated the "attached affidavit" by reference.
Norris executed the warrant that same day (March 26, 2001). Police officers found photographs of minor girls and videotapes, all of which appeared to the officers to be lewd material. Some of the material showed appellant engaging in sexual activity with some of the minors.
Appellant was arrested on March 28, 2001. His trial commenced on May 15, 2002. At a pretrial hearing, appellant moved to suppress the evidence seized in the search. One of his arguments was that the affidavit failed to establish a time frame when the observations leading to the allegations had been made. The trial court denied the motion to suppress, reasoning as follows:
[L]ooking at the four corners of the [affidavit for the search warrant], there is sufficient time frame alleged that the court could feel that there was just cause for the issuance of the warrant. The matters that were being sought were not consumables; they were not items that were normally moved in the course of illegal commerce; there's nothing to indicate that the items would not remain in place for a substantial period of time; they were being kept by [appellant] for what appeared to me off the facts alleged for his personal use, primarily; and the time frame is set out on the warrant I think to give me sufficient cause to believe that this illegal material remained on his premises on the date that the warrant was issued.
Appellant also made a number of technical challenges to the warrant, none of them to any avail.
At the end of the State's case-in-chief, appellant moved for a directed verdict on counts three through five of the criminal information. Count three alleged that appellant engaged in deviate sexual activity with another person not his spouse who was less than fourteen years old. Counts four and five alleged that appellant possessed visual or print medium depicting minors participating or engaging in sexually explicit conduct. Counsel for appellant stated the following:
[A]s to each of the counts that involve these young girls just baring their breasts for the video camera. At least two of them testified that they took them, and there was nothing to show that [appellant] knowingly possessed the items, even if they met the definition of sexual behavior. I don't think they do, because they don't qualify as a lewd exhibition. It's the same sort of flashing behavior you see maybe in New Orleans for the Mardi Gras where they toss jewels and silly things like that. It's more akin to mooning [than] to lewd behavior.
The trial court denied the motion. Appellant then rested and renewed his motion, which was again denied. The resulting convictions were based on the offense of possessing visual or print medium depicting sexually explicit conduct involving children.
Appellant challenges the sufficiency of the evidence underlying his conviction of possessing visual or print medium depicting sexually explicit conduct of minors. He does so as his last point of error. However, out of concern for double-jeopardy, we must consider this point first. Winbush v. State, 82 Ark.App. 365, 107 S.W.3d 882 (2003).
In his motion for directed verdict, appellant argued that there was insufficient proof of his knowledge and insufficient proof of the allegation that the contents of the visual or print media constituted in fact lewd exhibition. We note in passing that appellant now argues only the latter point. We also recognize that appellant did not offer a constitutional challenge to the statutes in question, and does not do so now on appeal.
We review challenges to the sufficiency of the evidence by determining whether substantial evidence, direct or circumstantial, supports the guilty verdict. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003). Substantial evidence is evidence of sufficient certainty and precision that compels a conclusion and passes beyond mere suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the verdict and consider only that evidence supporting it. Id.
The Arkansas Code forbids the knowing possession of "any visual or print medium depicting a child engaging in sexually explicit conduct." Ark.Code Ann. § 5-27-304(a)(2) (Repl.1997). Among the statutory definitions pertinent to the term "sexually explicit" we find the "[l]ewd exhibition of ... [t]he breast of a female." Ark.Code Ann. § 5-27-302(2)(E)(ii) (Repl.1997). Our case law has defined "lewd" to mean "obscene, lustful, indecent, lascivious," as well as "offensive to common propriety," or "offending against modesty or delicacy." Gabrion v. State, 73 Ark.App. 170, 173, 42 S.W.3d 572, 574 (2001).
In fact, our decision in Gabrion is quite to the point, in that that case involved a videotape depicting two minor girls. We noted in our opinion that the video tapes involved in that case contained "full frontal nudity." Id. at 172, 42 S.W.3d at 573. In addition, the videotape showed Gabrion directing the girls to undress and "assume suggestive poses that showed off their breasts and buttocks." Id., 42 S.W.3d at 573. We found that the jury could properly deem the videotape to be lewd and noted further that Gabrion apparently wanted us to ignore the fact that the girls on the tape were underage and not adults. Id., 42 S.W.3d at 574.
In the present case, we hold that the jury had substantial evidence before it to convict appellant of possessing visual or print medium depicting sexually explicit conduct of minors. The images in question were found within a videoclip on two CD-ROMs. The CD-ROMs were introduced at trial as State's Exhibits A and B. Still images from those videoclips were introduced separately as State's Exhibits E, F, and J. Among those images, one was labeled "[B.T.'s] Tits." Most of the pictures show young girls displaying their breasts.
B.T. testified at trial that she was the girl depicted in the pictures referred to as Picture 37 and "[B.T.'s] Tits." She also testified that the pictures were taken on August 10, 2000, and that her date of birth was...
To continue reading
Request your trial
-
George v. State
...a specific time-frame, thereby resulting in an insufficient search warrant under Ark. R.Crim. P. 13.1(b). See George v. State, 84 Ark.App. 275, 140 S.W.3d 492 (2003) ("George I"). We accepted the State's petition for review. When we grant review following a decision by the court of appeals,......