Mcfadden v. State , CR–07–1923.

• Citation: 67 So.3d 169
• Decision Date: 24 September 2010
• Docket Number: CR–07–1923.
• Parties: Ronald Jay McFADDENv.STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

67 So.3d 169

Ronald Jay McFADDEN

v.STATE of Alabama.

CR–07–1923.

Court of Criminal Appeals of Alabama.

June 25, 2010.Rehearing Denied Sept. 24, 2010.Certiorari Denied Jan. 14, 2011

Alabama Supreme Court 1100016.

Jeffry Cali Armstrong, Daphne, for appellant.Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.MAIN, Judge.

Ronald Jay McFadden was convicted of one count of possession of obscene matter containing a visual reproduction of a person under the age of 17 years, a violation of § 13A–12–192(b), Ala.Code 1975, and one count of production of obscene matter containing a visual reproduction of a person under 17 years of age, a violation of § 13A–12–197, Ala.Code 1975.¹ This appeal followed.

In July 2005, during a routine visit to McFadden's residence because McFadden was on probation for prior convictions, Probation Officer Cory Robbins of the Baldwin County Probation Office noticed that a lower kitchen cabinet door was ajar and that a pair of children's underwear was in the cabinet. Probation Officer Robbins also discovered other items in the kitchen cabinets, including toys and children's clothing. He contacted his supervisor, who gave him permission to search further. He also contacted Officer Connie King with the Foley Police Department. Probation Officer Robbins found depictions of nude children that he described as “numerous photos depicting young children, what would appear to be collages surrounded by adult genitalia.” (R. 49–50.) At that point, he detained McFadden and read him his Miranda² rights. McFadden denied knowledge of the items in his residence.

Officer King obtained a search warrant for the residence where he and other officers discovered children's items, such as toys, videos, magazines, underwear, children's books and parenting books, a growth chart depicting nude drawings of children, and numerous collage or montage exhibits.

I.

McFadden argues, as he did in the circuit court below, that the evidence was insufficient to sustain his convictions for possession of obscene matter and production of obscene matter. Relying on R.K.D. v. State, 712 So.2d 754 (Ala.Crim.App.1997), McFadden argues the collage or montage evidence was not “matter” because it is not a “live act, performance, or event.” See § 13A–12–190(12), Ala.Code 1975, a part of the Alabama Child Pornography Act § 13A–12–190 et seq., Ala.Code 1975 (“The ACPA”). Alternatively, McFadden argues that if the evidence is in fact “matter,” it is not “obscene”

As to the sufficiency of the evidence,

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

“ ‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).

“ ‘....

“ ‘ “The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury's verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).’ Granger [ v. State ], 473 So.2d [1137,] 1139 [ (Ala.Crim.App.1985) ].”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989).

The two-count indictment in 2005 charging McFadden tracked §§ 13A–12–192(b) and 13A–12–197, Ala.Code 1975. It is well settled that the statute in effect at the time a crime is committed governs the prosecution of that offense. See Minnifield v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005) (noting that “the law in effect at the time of the commission of the offense controls the prosecution”); see also Hardy v. State, 570 So.2d 871 (Ala.Crim.App.1990) (noting that, unless otherwise stated in the statute, the law in effect at the time the offense was committed controls the offense). In 2005, § 13A–12–192(b), Ala.Code 1975, the statute under which McFadden was indicted and convicted, stated:

“Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.” ³

(Emphasis added.) In 2005, § 13A–12–197(a), Ala.Code 1975, provided, in pertinent part:

“Any person who knowingly films, prints, records, photographs or otherwise produces any obscene matter that contains a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class A felony.” ⁴

(Emphasis added.) “Obscene” was defined in 2005, in pertinent part, as follows:

“b. When used to describe matter that contains a visual reproduction of an act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct, such term means matter containing such a visual reproduction that itself lacks serious literary, artistic, political or scientific value.”

§ 13A–12–190(13)(b), Ala.Code 1975 (emphasis added).⁵ The term “matter,” as used in this section in 2005, was defined as:

“[a]ny book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture or electrical or electronic reproduction, or any other articles or materials that either are or contain a photographic or other visual reproduction of a live act, performance, or event.”§ 13A–12–190(12), Ala.Code 1975.⁶ We note that, at the time of the charged offenses, “visual reproduction” was not defined in the relevant Code sections. See § 13A–12–190, Ala.Code 1975; § 13A–12–192(b), Ala.Code 1975, § 13A–12–197, Ala.Code 1975.⁷ “Genital nudity” is: “[t]he lewd showing of the genitals or pubic area.” § 13A–12–190(11), Ala.Code 1975. Because the term “lewd” is not defined by statute, it must be given its “ ‘natural, plain, ordinary, and commonly understood meaning.’ ” Perry v. State, 568 So.2d 339, 342 (Ala.Crim.App.1990), quoting Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984). “ ‘Lewd’ ” is defined as “ ‘[o]obscene, lustful, indecent, lascivious, lecherous.’ ” Perry, 568 So.2d at 342, quoting Black's Law Dictionary 817 (5th ed.1979).

“A ‘lewd showing of the genitals' does not require any overt act by the child depicted. The child depicted is not required to have assumed a sexually inviting manner, ... nor is it required that the child even be aware that the depiction is being produced.... ‘Lewdness,’ within ‘the context of the statute applied to the conduct of children ... is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles .... The picture of a child “engaged in [genital nudity]” ... as defined by [new § 13A–12–190(11) ] is a picture of a child's sex organs displayed [lewdly]—that is, so represented by the photographer as to arouse or satisfy the sexual cravings of a voyeur.’ ”Poole v. State, 596 So.2d 632, 640 (Ala.Crim.App.1992). See also Lanham v. State, 888 So.2d 1283 (Ala.Crim.App.2004); Cole v. State, 721 So.2d 255 (Ala.Crim.App.1998). Additionally, § 13A–12–200.1(19), Ala.Code 1975, defines “produce” as to “[c]reate, make, write, file, produce, reproduce, direct, or stage.”

In examining the relevant statutes as they read at the time of the charged offenses and in considering the collage or montage exhibits, we also must apply the following principles of statutory construction and view the collages or montages in totality:

“ ‘ “[I]t is well established that criminal statutes should not be ‘extended by construction.’ ” ' Ex...