George v. State

• Decision Date: 24 June 2004
• Docket Number: No. CR 04-12.,CR 04-12.
• Parties: Glenn E. GEORGE v. STATE of Arkansas.
• Court: Arkansas Supreme Court

189 S.W.3d 28

Glenn E. GEORGE v. STATE of Arkansas.

No. CR 04-12.

Supreme Court of Arkansas.

June 24, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

T.B. Patterson, P.A., Hot Springs, for appellant.

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

RAY THORNTON, Justice.

This appeal arises from the conviction of appellant, Glenn George, of nine counts of possessing visual or print medium depicting sexually explicit conduct of children, a violation of Ark.Code Ann. § 5-27-304 (Repl.1997), a Class C felony. Following a jury trial, a Garland County jury convicted appellant and sentenced him to ninety years' imprisonment and $78,000.00 in fines. On appeal, appellant makes four allegations of error. We affirm the jury's findings, and we reverse the court of appeals.

On April 2, 2001, Detective Paul R. Norris of the Hot Springs Police Department filed an affidavit for a search warrant in which the following facts were alleged. On March 22, 2001, a woman reported that her fourteen-year-old daughter, B.T., told her that appellant provided alcohol to her and to her friends, and that at appellant's apartment, B.T. observed nude photographs of other girls whom she knew to be fourteen- or fifteen-years-old.

During an interview on March 26, 2001, B.T. told Detective Tim Smith that appellant gave her an alcoholic drink, and that she saw nude photographs of her friends about her age on appellant's computer.

B.T.'s friend, J.T., was also interviewed on the same day by Detective Smith. She stated that appellant gave her an alcoholic drink while at appellant's house. J.T. found a video on appellant's computer of her friend, K.T., dancing nude.

At trial, Detective Norris testified that these interviews were conducted on March 26, 2001. Based upon the information obtained in those interviews, Detective Norris prepared the affidavit for a search warrant, which stated:

In the city of Hot Springs ..., 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 performance.

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 friend, [K.T.], dancing nude.

The affidavit for search warrant was signed by Detective Norris and was sworn before Judge Homer Wright with a handwritten date of March 26, 2001.

On March 26, 2001, the search warrant was executed. The warrant stated:

In the city of Hot Springs ..., 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 I am satisfied that there is probable cause to believe that the property so described is being concealed on the (premises) (person) above described and that the foregoing grounds for application for issuance of the search warrant exist.

The attached affidavit for search warrant is hereby incorporated by reference.

Detective Norris, Detective Smith, Detective Waterfield, and Lieutenant Hill executed the search warrant at appellant's address on March 26, 2001. The police officers seized appellant's computer system, which contained digital photographs of "young, nude females in different positions." Each was labeled with the girl's name. The officers also found a video that showed a "young, white female dancing, exposing her breasts and vaginal area." The video was labeled with her name as well. Additionally, the officers seized a camcorder, twelve camcorder discs, sixty video tapes, and four computer discs. The officers also seized sexually explicit photographs, a pistol, drugs, and drug paraphernalia. After leaving a copy of the warrant and a receipt of the items seized at appellant's residence, Detective Norris brought a return slip that contained a list of the items seized pursuant to the warrant.

Appellant was arrested on March 28, 2001. Appellant filed a motion to suppress on the basis that the physical evidence was obtained under a defective search warrant. The suppression hearing was held on April 29, 2002. Defense counsel argued that the affidavit for the search warrant was flawed because "there is nothing in here that provided the court a time frame to determine that there were materials that could be seized in the home at the time the warrant was requested." The State responded by stating, "[A]s to the time problem, the bottom line as a test is whether the affidavit contained enough information to give the magistrate, or in this case you, substantial basis for concluding that probable cause existed. I believe it did."

On May 3, 2002, the trial court denied appellant's motion to suppress and ruled:

I'm denying the defendant's motion to suppress and upholding the warrant issued in this matter, primarily based on the fact that the grounds alleged were that there — the time was indefinitely stated or not stated on the face of the warrant; and it's my belief that looking at the four corners of the document 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 are normally moved in the course of illegal commerce; there's nothing to indicate that the times would not remain in place for a substantial period of time; they were being kept by the defendant for what appeared to me off the facts alleged for his own — for his personal use, primarily — although the facts did allege that other people were being exposed to these images — and the time frame that is set out on the warrant I think gave me sufficient cause to believe that there was — that this illegal material remained on his premises on the date that the warrant was issued.

On May 15, 2002, appellant's jury trial commenced. Eight girls testified during the State's case-in-chief. C.B. testified that she was fourteen-years-old when she and appellant began sexual relations. Appellant videotaped their sexual activities. L.J. testified that she was fourteen-and-a-half when she began having a sexual relationship with appellant, and it continued for five years. Through L.J., the State admitted a tape of appellant and another girl, T.D., whom L.J. babysat, having sex while L.J. was in the room. T.D. testified that she and appellant began having sexual relations when she was twelve that continued until she was eighteen. During that time, appellant taped their activities. K.T. testified she had made a movie during which she danced nude. Appellant later found the movie on his computer and kept it. K.T. was fourteen-years-old at the time the movie was made. K.B. testified that, when she was thirteen-years-old, she bared her breasts during appellant's filming. B.T. testified that she exposed her breasts in front of appellant's computer and web camera. J.T. testified that she was in pictures with B.T. and K.B., opening their mouths and lifting their shirts. L.H. testified that appellant took nude photos of her in his apartment when she was fourteen. In these pictures, L.H. is posed in a variety of ways that expose her breasts and genitalia. Appellant entitled many of these photographs with sexually explicit captions.

The trial court denied appellant's motion for directed verdict. Appellant rested and renewed his motion, which the trial court denied. The State called T.D., L.H., and L.H.'s mother during the sentencing phase. The jury found appellant guilty of nine counts of possession of a visual or print medium depicting sexually explicit conduct involving a child. Those nine convictions stem from those counts involving C.B., L.J. and T.D., T.D., K.T., K.B., B.T., E.T., and L.H. The jury sentenced appellant to ninety years' imprisonment and $78,000.00 in fines.

In a 4-2 decision, the court of appeals reversed and remanded, holding that the trial court should have granted appellant's motion to suppress on the basis that the affidavit for the search warrant did not have 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, we review the case as though it had been originally filed with this court. See Baird v. State, 357 Ark. 508, 182 S.W.3d 136 (2004).

Appellant argues four points on appeal. First, he argues that the trial court erred in denying the motion to suppress the evidence because of an invalid warrant. Second, he contends that the trial court erred in denying his motion to suppress because additional evidence was seized. Third, he argues that the trial court erred in denying his motion to dismiss the charges based upon a speedy-trial violation. Fourth, he challenges the sufficiency of the evidence on three counts.

The preservation of appellan...