Hause v. Com.
| Citation | 83 S.W.3d 1 |
| Decision Date | 19 October 2001 |
| Docket Number | No. 2000-CA-002006-MR.,2000-CA-002006-MR. |
| Parties | Brian D. HAUSE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Court of Appeals of Kentucky |
Raymond S. Bogucki, Jesse P. Melcher, Matthew T. Sanning, Bogucki, Knoebel & Vice, P.S.C., Maysville, KY., for Appellant.
Albert B. Chandler III, Attorney General, J. Hamilton Thompson, Assistant Attorney General, Frankfort, KY., for Appellee.
Before DYCHE, EMBERTON and HUDDLESTON, Judges.
Brian D. Hause entered a conditional plea of guilty pursuant to Kentucky Rule of Criminal Procedure (RCr) 8.09 to charges of possession of matter portraying a minor in a sexual performance1 and distribution of matter portraying a minor in a sexual performance2 and was sentenced to three years' imprisonment. He appeals the denial of his motion to suppress materials that formed the basis of the charges lodged against him.
In the spring of 1999, Detective Michael DiMatteo of the San Bernadino, California, Sheriff's Department, began investigating the distribution of child pornography on the Internet. DiMatteo accessed the Internet by way of America On Line (AOL), an Internet service provider, and used a private "chat-room"3 to find individuals who were distributing child pornography.
DiMatteo accessed the chat-room and started a computer program that generated a list of screen names being used by individuals in the chat-room. DiMatteo then left the chat-room without having conversed with anyone. Shortly thereafter, DiMatteo began receiving e-mail messages from individuals who had been in the chat-room. DiMatteo received two e-mail messages from one of the chat-room users identified as Bh0810. These messages from Bh0810 each contained information concerning the originator of the messages and when they had been sent. And, each message had a photograph attached.4
After receiving these images, DiMatteo prepared an affidavit and presented it to a California magistrate. The magistrate found probable cause to obtain the AOL subscriber information for Bh0810 and several other screen names.
DiMatteo served this warrant on AOL at its headquarters in Dulles, Virginia, where the subscriber records were maintained. AOL complied with the warrant and provided DiMatteo with the requested subscriber records.
The subscriber records revealed that Bh0810 was Brian Hause of Lexington, Kentucky. Armed with this information, DiMatteo contacted the local field office of the Federal Bureau of Investigation. A member of a special task force of the F.B.I. contacted Detective Jesse Harris of the Lexington, Kentucky, Police Department. Subsequently, Harris received a copy of the affidavit prepared by DiMatteo, the search warrant issued in California, the subscriber records of Hause, the photographic images sent by Bh0810, and other documents relating to the investigation.
After verifying Hause's address, Harris prepared an affidavit in support of a search warrant and, subsequently, a district court judge issued the warrant. The warrant was served and Hause's computer, notes, papers, pictures and other items were seized by the police. The search of Hause's computer revealed several files containing depictions of child pornography.
On December 8, 1999, Hause was indicted on the charges to which he subsequently entered a conditional guilty plea. Before entering his conditional guilty plea, Hause filed several motions to suppress the evidence seized and a motion to have Kentucky Revised Statutes (KRS) 531.330 and 531.340 declared unconstitutional. All these motions were denied.
On appeal, Hause asserts that: (1) the circuit court erred in failing to declare KRS 531.330 and KRS 531.340 unconstitutionally overbroad; (2) the court erred in failing to declare KRS 531.330 unconstitutionally vague; (3) the court erred in failing to suppress all evidence seized in Virginia; (4) the court erred in failing to suppress all evidence seized in Kentucky because it was obtained as fruit of the poisonous tree; (5) the court erred in failing to suppress all evidence seized in Kentucky because the information that served as the basis for the warrant was stale and no-good faith exception applies; and (6) the court erred in failing to suppress all evidence seized in Kentucky because the search warrant was overbroad.
Hause argues that KRS 531.340 is unconstitutionally overbroad because it allows for the prosecution of individuals possessing material portraying a sexual performance by a person over the age of eighteen. Hause also argues that KRS 531.330 is unconstitutionally overbroad because it regulates protected speech in that a person could be prosecuted for distribution of matter portraying a sexual performance of a virtual or computer-generated person that appears to be a minor.
A challenge to the constitutionality of an act of the General Assembly must "necessarily begin with the strong presumption in favor of constitutionality and [the Court] should so hold if possible."5 "A challenge to a statute on the basis that it is overbroad is essentially an argument that in an effort to control impermissible conduct, the statute also prohibits conduct which is constitutionally permissible."6 "[A] statute may be perfectly clear and unambiguous but nevertheless unconstitutional if it prohibits constitutionally protected activities or may be enforced in an arbitrary manner."7
The statute under attack, KRS 531.330, provides that:
(1) For purposes of KRS 529.030, 530.070, 531.080 and 531.300 to 531.370, any person who appears to be under the age of eighteen (18), or under the age of sixteen (16), shall be presumed to be under the age of eighteen (18), or under the age of sixteen (16), as the case may be.
(2) In any prosecution under KRS 529.030, 530.070, 531.080 and 531.300 to 531.370 the defendant may prove in exculpation that he in good faith reasonably believed that the person involved in the performance was not a minor.
(3) The presumption raised in subsection (1) of this section may be rebutted by any competent evidence.
Arguably, a person could portray a constitutionally permissible sexual performance involving an individual who is not a minor, but appears to be under the age of eighteen; however, KRS 531.330 does not prohibit that conduct. All that KRS 531.330 establishes is an evidentiary presumption and the burden shifting analysis that courts are to employ when an individual is prosecuted under KRS 529.030, 530.070, 531.080 or 531.300 to 531.370. Therefore, KRS 531.330 is not unconstitutionally overbroad.
KRS 531.340 provides that:
(1) A person is guilty of distribution of matter portraying a sexual performance by a minor when, having knowledge of its content and character, he:
(a) Sends or causes to be sent into this state for sale or distribution; or
(b) Brings or causes to be brought into this state for sale or distribution; or
(c) In this state, he:
1. Exhibits for profit or gain; or
2. Distributes; or
3. Offers to distribute; or
4. Has in his possession with intent to distribute, exhibit for profit or gain or offer to distribute, any matter portraying a sexual performance by a minor.
(2) Any person who has in his possession more than one (1) unit of material coming within the provision of KRS 531.300(2) shall be rebuttably presumed to have such material in his possession with the intent to distribute it.
(3) Distribution of matter portraying a sexual performance by a minor is a Class D felony.
Hause does not argue that he committed no crime;8 the argument preserved and presented on appeal is whether KRS 531.340 is unconstitutionally overbroad. While we recognize the principle that "[t]here can be no penalty if there is no crime[,]"9 we also acknowledge that "the overbreadth doctrine allows challenges from one whose own conduct may be clearly unprotected[.]"10
Hause argues that KRS 531.340 is unconstitutionally overbroad because virtual child pornography is protected speech and cannot be regulated by the government. Hause directs our attention to Free Speech Coalition v. Reno11 in which it was held that "Congress has no compelling interest in regulating sexually explicit materials that do not contain visual images of actual children[,]"12 and, therefore, making criminal "the generation of images of fictitious children engaged in imaginary but explicit sexual conduct [is prohibited by the First Amendment to the United States Constitution]."13
While this Court is not bound by the decision in Free Speech Coalition v. Reno, its persuasive value can be considered.14 However, upon review of Free Speech Coalition, we find that the terms15 of the federal statute16 at issue in that case, which were held to be unconstitutionally vague and overbroad,17 are not found in KRS 531.340. Therefore, Hause's reliance on Free Speech Coalition is misplaced. Unlike the statute in Free Speech Coalition, KRS 531.340 requires proof that a person distributed "matter portraying a sexual performance by a minor[.]" According to KRS 531.330, minors are persons.
[L]aws which create crime should be sufficiently explicit that men subject to [its] penalties may know what acts are forbidden, and before a man can be punished, his case must be plainly within the statute. Crime is not to arise upon doubtful construction of a statute where a person of ordinary intelligence, reading the statute, would not understand from it that the act was forbidden. Criminal statutes are not cunningly and darkly framed to catch the unwary, and they are not extended for this purpose beyond the fair and natural meaning of the words used.18
"[T]he law never favors penalties and will not exact them unless the statute is clear and convincing."19 Therefore, "if [a] statute [is] so ambiguous as to leave reasonable minds in doubt, [a...
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