Lewis v. State

• Decision Date: 16 February 2023
• Docket Number: CR-21-615
• Parties: JEREMEY LEWIS APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Supreme Court

2023 Ark. 12

JEREMEY LEWIS APPELLANT
v.
STATE OF ARKANSAS APPELLEE

No. CR-21-615

Supreme Court of Arkansas

February 16, 2023

APPEAL FROM THE CLARK COUNTY CIRCUIT COURT [NO. 10CR-20-36] HONORABLE BLAKE BATSON, JUDGE

AFFIRMED IN PART; REVERSED AND DISMISSED IN PART.

Tinsley & Youngdahl, PLLC, by: Jordan B. Tinsley, for appellant.

Leslie Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't Att'y Gen.; and Walker K. Hawkins, Ass't Att'y Gen., for appellee.

JOHN DAN KEMP, CHIEF JUSTICE

Appellant Jeremey Lewis appeals a Clark County Circuit Court sentencing order convicting him of twenty-five counts of possessing or viewing matter depicting sexually explicit conduct involving a child and sentencing him to serve forty-two years in the Arkansas Division of Correction. For reversal, Lewis argues that (1) substantial evidence does not support his convictions; (2) the circuit court erred in denying his motion to suppress evidence; (3) the circuit court abused its discretion by admitting evidence about an allegation that he had raped his daughter; (4) the circuit court abused its discretion by admitting evidence of uncharged child pornography; (5) the circuit court erred by rejecting his facial and as-applied challenges to the constitutionality of Arkansas Code Annotated section 5-27-602 (Repl. 2013); and (6) the circuit court abused its discretion in denying his request for an affirmative-defense jury instruction. We affirm in part and reverse and dismiss in part.

I. Facts

Investigator Sherry Cleek with the Clark County Sheriff's Department testified at trial that she had been "investigating a rape allegation made by [Lewis's] five-year-old daughter." As

1

part of the investigation, Cleek directed Clark County Investigator Blake Forga and Amity Police Chief B.J. Johns to arrest Lewis.

On January 15, 2020, Investigator Forga and Chief Johns arrived at Lewis's residence in Amity and banged on the door. Lewis came out after several minutes. They took Lewis into custody and as a search incident to arrest, the officers searched his person. At that point, Forga noticed a chain clipped to Lewis's pants, which was attached to a holder containing a cigarette lighter. They removed the lighter, and three microSD cards fell to the ground. Johns and Forga seized the S.D. cards and placed them in an evidence bag. Forga obtained a warrant before searching the S.D. cards. Forga viewed the contents of the S.D. cards and observed what he "believed [was] child pornography-sexual acts involving children[.]"

Forga then obtained a search warrant for Lewis's residence. While executing that warrant, officers seized several electronic devices, including three cell phones and an iPod. Forga provided those devices and the S.D. cards to the Arkansas State Police. He obtained another search warrant to search the seized devices. Arkansas State Police Special Agent Corwin Battle conducted a forensic examination of the S.D. cards and the electronic devices. Battle found images that were pornographic in nature involving children. Some were computer-generated imagery (CGI), and some were actual photographs that were not CGI.

Based on images found on an LG cell phone, on an S.D. card that had been inserted into the phone, and on one of the loose S.D. cards, Lewis was charged with thirty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child in violation of Arkansas Code Annotated section 5-27-602. A Clark County jury found Lewis guilty of twenty-five counts, acquitted him of five, and sentenced him to a total of forty-two years in the Arkansas Division of Correction. Lewis filed a timely appeal.

2

II. Points on Appeal

A. Sufficiency of the Evidence

Lewis presents several challenges to the sufficiency of the evidence supporting his convictions. First, he argues that the State presented insufficient evidence that he knowingly possessed the images underlying the charged counts because (1) the State never proved that he constructively possessed the LG phone and the S.D. card that were found in his residence; and (2) in light of the "immense amount of data each device contained," the evidence did not support an inference that he had knowledge of the contraband images on the devices. Second, he argues that the individuals depicted in the CGI do not meet the legal definition of a "child." Third, he argues that, with respect to several counts, no reasonable juror could have determined that the individuals depicted in the images fit within the applicable age parameters for the crime.

A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. McClendon v. State, 2019 Ark. 88, at 3, 570 S.W.3d 450, 452. In reviewing this challenge, we view the evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Id., 570 S.W.3d at 452. We will affirm the verdict if substantial evidence supports it. Id., 570 S.W.3d at 452. Substantial evidence is evidence 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. Id., 570 S.W.3d at 452. Evidence is not substantial if the fact-finder is left to only speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to suspicion. Winston v. State, 368 Ark. 105, 110, 243 S.W.3d 304, 307-08 (2006). A directed verdict should be granted when there is no evidence from which the jury could have found, without resorting to surmise and conjecture, the guilt of the defendant. Id., 243 S.W.3d at 308. It is the function of the jury, and

3

not the reviewing court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the evidence. Breeden v. State, 2013 Ark. 145, at 5, 427 S.W.3d 5, 8-9.

Arkansas Code Annotated section 5-27-602(a) states,

(a) A person commits distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child if the person knowingly:

(1) Receives for the purpose of selling or knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer through any means, including the Internet, any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct; or

(2) Possesses or views through any means, including on the Internet, any photograph, film, videotape, computer program or file, computer-generated image, video game, or any other reproduction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct.

A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Wright v. State, 2022 Ark. 103, at 9, 644 S.W.3d 236, 241. Because intent cannot be proved by direct evidence, jurors can draw upon their common knowledge and experience to infer it from the circumstances. Id., 644 S.W.3d at 241.

1. Knowing possession of images

a. Constructive possession

Lewis claims that the State never presented evidence proving that the LG phone and S.D. card found inside the phone, which were found in his residence when officers executed their search warrant, more likely belonged to him than the other occupants of the home.

It is not necessary for the State to prove that an accused physically held contraband, as possession can be proved by constructive possession, which is the control or right to control

4

the contraband. Pokatilov v. State, 2017 Ark. 264, at 3, 526 S.W.3d 849, 853. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id., 526 S.W.3d at 853. In cases involving joint occupancy of the premises where contraband is found, some additional factors must be present linking the accused to the contraband. Id. at 4, 526 S.W.3d at 854. Those factors include (1) that the accused exercised care, control, or management over the contraband; and (2) that the accused knew the matter possessed was contraband. Id., 526 S.W.3d at 854. Control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where it is found. Id., 526 S.W.3d at 854.

Here, although no one was in Lewis's residence when the search warrant was executed there, Forga determined that there were other occupants of the residence. Battle was asked on direct examination if there was anything on the LG phone tying it to Lewis, and he responded that "[t]here was just, basically, text messages that were located on the phone. There was an email address that was located on the phone. And, also, just normal pictures that you would see in the course of things just tying Mr. Lewis back to it."

Lewis faults Battle for not elaborating on the evidence tying Lewis to the LG phone and S.D. card. However, Lewis's challenge to Battle's credibility was a matter for the jury, not this court on appeal. See Breeden, 2013 Ark. 145, at 5, 427 S.W.3d at 8-9. Viewing the evidence in the light most favorable to the State, we hold that the emails, texts, and pictures linking Lewis to the LG phone were sufficient for the jury to conclude, without resorting to speculation or conjecture, that he constructively possessed both it and the S.D. card inside it.

5

b. Knowledge

Lewis further argues that in light of the immense amount of data on each device, the evidence did not support an inference that he had knowledge...