Minch v. Commonwealth
| Decision Date | 30 September 2021 |
| Docket Number | 2020-SC-0366-MR |
| Citation | 630 S.W.3d 660 |
| Parties | Dylan Tyler MINCH, Appellant v. COMMONWEALTH of Kentucky, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Jared Travis Bewley, Assistant Public Advocate, Department of Public Advocacy.
COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Kristin Leigh Conder, Assistant Attorney General.
Dylan Tyler Minch appeals as a matter of right from the judgment imposing a seventy-year sentence for his convictions on forty counts of possession or viewing of a matter depicting a sexual performance by a minor, seven counts of the use of a minor under sixteen in a sexual performance, and one count of sexual abuse of a minor under twelve.1
He argues on appeal that (1) he was denied a fair trial on the sexual abuse and sexual performance charges because they were tried jointly with the possession charges; (2) pornographic images that were not connected to the indicted charges were used improperly as Kentucky Rule of Evidence (KRE) 404(b) evidence against him and rendered his trial unfair; (3) the trial court erred in denying his motion for a continuance because he needed to review the KRE 404(b) evidence used against him; and (4) the cumulative effect of these errors compels reversal. We find it necessary to reverse Minch's convictions because the trial court erred in allowing the Commonwealth to use a voluminous number of unindicted images as KRE 404(b) evidence. Consequently, we decline to address Minch's arguments that his conviction should be reversed on the bases of cumulative error and the trial court's failure to grant his motion to continue.
The Attorney General's cybercrimes unit, the unit tasked with monitoring the internet for child pornography, received a flag from the monitoring system reporting the location of previously identified child pornography. Detective Littrell from the AG's cybercrimes unit received the flag on his computer and obtained the IP address of the user who was in possession of the material. Littrell obtained the physical location of that IP address being used at that date and time. Littrell applied for and executed a search warrant at the Minch home where he encountered Minch, his wife, and their infant daughter (J.M.). Minch gave his cell phone and its passcode to Littrell, who then found content he suspected to be child pornography. Some of the images that Littrell discovered were images of J.M. taken by the cell phone's camera.
Detective Bell from the cybercrimes unit conducted a manual examination of the phone. He found there ten similar images of J.M., all taken within minutes of each other, all depicting her naked. Minch sent a text containing one of these images to his wife in response to hers informing him that she was headed home from work. This image showed a naked man—whose head was not visible—in the bathtub with a naked J.M. And in response to his wife's question about whether J.M. had been fed, Minch sent a second image, this time showing his face and J.M. in the foreground taking her bottle.
In total, Bell found on Minch's cell phone what the Commonwealth alleges to have been 925 files of child sexual-exploitation material. On one of the Minch home computers, Bell found what the Commonwealth alleges to have been 4,622 images and 1,005 videos of child sexual exploitation material. At the end of his investigation, Bell presented his full report to Littrell who selected some of the images and videos to present to the grand jury.
The grand jury's original indictment of Minch contained thirty-one counts, twenty of which were for possession or viewing a matter depicting a sexual performance by a minor. A superseding indictment contained fifty-one counts, adding twenty more relating to the child pornography. During the trial, the Commonwealth moved to dismiss three counts. Ultimately, the jury convicted Minch of all pending charges and recommended sentences as follows: forty counts of possession or viewing of a matter depicting a sexual performance by a minor, for which the jury recommended consecutive five-year sentences; and seven counts of use of a minor under 16 in a sexual performance, for which the jury recommended consecutive ten-year sentences. The trial court sentenced Minch to a total of 70 years’ imprisonment.
On appeal, Minch argues that any discussion of the images not presented to the grand jury and, therefore, not subject to indictment, should not have been allowed by the trial court because they constitute evidence of uncharged crimes in violation of KRE 404(b). Minch also asserts that the trial court should have severed the counts involving J.M. as the alleged victim. Minch additionally claims that the trial court should have granted his motion to continue the trial to allow him time to review all these images. Finally, he urges this Court to find that the cumulative effect of these errors rendered his trial fundamentally unfair.
Minch argues that his trial was rendered unfair because the more serious charges of his use of a minor under 16 in a sexual performance—the charges arising from the images he took of himself and J.M. naked and in the bathtub—were not severed from the multiple remaining charges of possession or viewing of a matter depicting a sexual performance by a minor. Minch asserts that the jury could not fairly evaluate the evidence against him on the charges related to the bathtub images2 because of the overwhelming amount of evidence presented against him on the possession-of-child-pornography counts. He argues that the trial court erred in not severing the bathtub-image counts for separate trial. We disagree.
Minch was indicted on charges arising from two different sets of images. One set was of images Minch took using his cell phone camera while he and J.M. were naked in the bathtub. The other set of images included those tracked on the internet by investigators as child pornography. While there were seven separate counts submitted to the jury relative to seven bathtub images, those images were all essentially the same shot taken seconds apart. The pictures displayed Minch, with his face not shown, in the bathtub with J.M. Both Minch and J.M. are naked, and J.M. is lying vertically, face up across her father's genitals. These photos were taken shortly before accompanying text messages that place these pictures in context of a text-message exchange between Minch and his wife. The text messages include Minch's wife informing him she will be home soon. Minch's response to his wife's text was the photo of him and J.M.—the photo for which he was indicted for sexual exploitation. The wife then asked via text if J.M. had been fed, and Minch responded with another image that showed his face along with J.M. in the foreground taking a bottle. The text messages were read to the jury as follows:
Before trial, Minch sought to sever count 51, the charge of first-degree sexual abuse, and counts 1-10, the charges of use of a minor in a sexual performance, from counts 11-50, the charges of possession or viewing of a matter depicting a sexual performance by a minor.3 The Commonwealth opposed Minch's motion, and the trial court held a hearing. The defense argued that if the counts were severed, the child-pornography charges would not be relevant to anything at issue in the sexual-exploitation and sexual-abuse charges but would only serve as unduly prejudicial propensity evidence in a combined trial. The defense also argued that the Commonwealth had given the grand jury the opportunity to indict Minch for crimes associated with the bathtub photos in conjunction with presenting the other images recovered during the investigation and that the detectives’ grand jury testimony described the bathtub pictures as otherwise somewhat innocuous. Lastly, the defense requested the trial court conduct an in-camera review of the bathtub images. The trial court informed counsel it would consider reviewing them after researching the law on severance.
In opposing Minch's severance motion, the Commonwealth argued that the images for which Minch was charged with sexual exploitation of a child involved a naked child with visible genitalia and whether this depicted a sexual performance was a question for the jury. So, the Commonwealth argued, the other pornographic images were relevant to demonstrate Minch was sexually aroused by children and to show his intent in the creation of the images. Finally, the Commonwealth argued that if the trial court severed the charges, it would have to try the same case twice.
The trial court did not issue a ruling at the hearing. At the hearing, the trial court questioned the Commonwealth and defense counsel about the nature of the images, the similarity of the offenses, and the potential prejudice to Minch. Ultimately, the trial court denied the severance motion by written order but failed to give a factual or legal reason to support its ruling.
At Minch's trial, the jury heard testimony about child-pornography culture, the forty indicted images found on Minch's computer, and the unindicted images. Littrell testified that images like the ones of Minch and J.M. were typically used as something to exchange for other child pornography. Minch argues that he was prejudiced because of the charges not being severed.
We will not overturn a trial court's decision not to sever...
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... ... only with Rule 404(c)(1)(C) but also the decisions of other ... jurisdictions. See, e.g., Minch v. Commonwealth , 630 ... S.W.3d 660, 666-69 (Ky. 2021) (finding reversible error based ... on the prejudicial impact of admitting 40 ... ...
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Bounds v. Commonwealth
...images of child pornography).Concurrently with the rendition of this case, we have issued an opinion in Minch v. Commonwealth , 2020-SC-0366-MR, 630 S.W.3d 660 (Ky. Sept. 30, 2021) in which we reach a different conclusion as to the admissibility under KRE 404(b) of additional images of chil......