Phillips v. State

• Decision Date: 22 June 2004
• Docket Number: No. A04A1214.,A04A1214.
• Citation: Phillips v. State, 269 Ga. App. 619, 604 S.E.2d 520 (Ga. App. 2004)
• Parties: PHILLIPS v. The STATE.
• Court: Georgia Court of Appeals

604 S.E.2d 520

269 Ga. App. 619

PHILLIPS v.The STATE.

No. A04A1214.

Court of Appeals of Georgia.

June 22, 2004.

Reconsideration Dismissed September 16, 2004.

Lee W. Fitzpatrick, Canton, for appellant.

David McDade, District Attorney, Brian K. Fortner, Christopher R. Johnson, Assistant District Attorneys, for appellee.

ELLINGTON, Judge.

A Douglas County jury convicted James Manuel Phillips, Jr. of child molestation, OCGA § 16-6-4(a); two counts of sexual exploitation of a child, OCGA § 16-12-100; two counts of theft by receiving stolen property, OCGA § 16-8-7; and obstruction of a law enforcement officer, OCGA § 16-10-24.Following the denial of his motion for new trial, Phillips appeals, challenging the sufficiency of the evidence and certain evidentiary rulings.For the reasons which follow, we affirm in part and reverse in part.

Viewed in the light most favorable to the prosecution,¹ the record shows the following facts.In March 1998, Phillips began renting a room in a woman's house.The homeowner had two daughters, 5-year-old C.L. and 3-year-old K.L. Phillips shared meals, leisure activities, and chores with the family.The homeowner regularly did Phillips' laundry and, with Phillips' permission, entered his room to put folded laundry away in his dresser.Phillips allowed the homeowner and her two daughters to use his computer and television, and they entered his room freely both when he was present and when he was absent.

In May 1998, the homeowner learned that Phillips had pawned two pieces of her jewelry.She called the police to report the theft.While waiting for investigators to arrive, the homeowner went into Phillips' room and looked for other missing jewelry in his dresser, where she discovered a bag of marijuana.She left the dresser drawer open and informed the first officer to arrive of her discovery.An investigator accompanied the homeowner to the threshold of Phillips' bedroom and, without entering Phillips' room, saw the marijuana.The investigator then left the house to get a warrant to search Phillips' room for illegal drugs.

While the investigator was seeking the warrant, Phillips called the house and asked why the police were at the house.Later, while the initial search was in progress, the homeowner saw Phillips drive by the house and alerted the investigators.An officer followed Phillips but was unable to catch him before he abandoned his vehicle and fled.

While searching Phillips' room pursuant to the search warrant, investigators found in the closet, among other items, a collection of panties (some of which were soiled) belonging to C.L. and K.L., and a box of pornographic magazines.After investigators discovered the panties and the pornography, the homeowner told investigators that C.L.'s vulva had been red, irritated, and painful for the preceding few weeks.One investigator seized several items immediately; a crime scene investigator arrived several hours later and collected the panties and pornography.Upon processing the evidence, investigators found three computer-printed nude photographs of C.L. between the pages of a pornographic magazine titled "Barely Legal."During videotaped interviews of C.L. and K.L., both girls told an investigator that Phillips had bathed them, washed their genital areas with his hand, and photographed them naked.The homeowner had never given Phillips permission to bathe her daughters or to photograph them naked, and she did not know that he had done so.

The next day, investigators obtained a second warrant, to search Phillips' room, including his computer, for any evidence of the crime of child molestation.The homeowner provided investigators with photographic negatives from a roll of film Phillips shot, which ultimately produced photographs showing C.L. and K.L., naked, during and after a bath.An undeveloped roll of film found in Phillips' camera produced similar pictures of the girls.The homeowner later discovered a videotape of Phillips masturbating with the girls' panties and turned it over to the police.

For a year after the homeowner first contacted the police about the pawned jewelry and the resulting searches of Phillips' room, Phillips was a fugitive.He was returned to Douglas County to face these charges after being arrested in Montana on a traffic violation.During an interview, Phillips admitted bathing the children, washing C.L.'s genital area with his hand, and taking the photographs.At trial, this statement was introduced against Phillips.

The jury convicted Phillips of molesting C.L., of sexually exploiting C.L. and K.L. by taking the nude photographs, of theft by taking the two items of jewelry recovered from the pawnshop, and of obstruction by fleeing.²

1.Phillips contends the trial court abused its discretion in denying his motion to suppress evidence seized as a result of a warrantless search of his bedroom.We apply the following standard of review to the trial court's ruling: "A trial court's order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.We construe all evidence presented in favor of the trial court's findings and judgment."(Citations and punctuation omitted.)Powers v. State,261 Ga.App. 296, 297, 582 S.E.2d 237(2003).However, "where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review."(Citations omitted.)Vansant v. State,264 Ga. 319, 320(1), 443 S.E.2d 474(1994).

Phillips characterizes two actions as warrantless searches: (1) the homeowner entering Phillips' room and opening a drawer, and (2) an investigator standing at the door to Phillips' room and looking into the open drawer.With regard to the homeowner's conduct, the uncontroverted evidence established that the homeowner had no contact with any government agent until after she opened the drawer.It is well established that

[ t]he protection afforded by the Fourth Amendment proscribes only governmental action and is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation of a government official.The test is whether the private individual, in light of all the circumstances of the case, must be regarded as having acted as an "instrument" or agent of the government when he produced the evidence.

(Footnote omitted.)Pruitt v. State,263 Ga.App. 814, 818(2), 589 S.E.2d 591(2003).In this case, the warrantless search provided no basis to suppress the evidence because the homeowner acted entirely without governmental involvement.Id. at 818-819(2), 589 S.E.2d 591.

With regard to the investigator looking into Phillips' room, the uncontroverted evidence established that the homeowner in this case invited the officers into her house and that the investigators never entered Phillips' quarters before obtaining a warrant."A police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant's Fourth Amendment rights in the process of establishing his vantage point."(Punctuation and footnote omitted.)Osment v. State,256 Ga.App. 591, 592, 569 S.E.2d 262(2002).Under the circumstances presented here, because the investigator saw the marijuana in plain view while standing in a place he had a right to be, there was no unlawful warrantless search.Rowe v. State,184 Ga.App. 437-438(1), 361 S.E.2d 705(1987).The trial court did not abuse its discretion in denying Phillips' motion to suppress.

2.Phillips contends the trial court abused its discretion in denying his motion to suppress evidence seized after investigators secured the first search warrant, arguing the scope of the search exceeded the warrant.Specifically, Phillips points to the report of items seized after execution of the first search warrant, which included items found on Phillips' desk and in his closet, such as pawn receipts, correspondence, checks, computer disks, and an undeveloped roll of film.Phillips argues that the search should have been confined to the one drawer where the homeowner found the bag of marijuana and that investigators should have seized only items that could immediately be seen to be incriminating.

In this case, the first search warrant authorized investigators to search Phillips' bedroom for illegal drugs.Because drugs can be secreted in small spaces, the scope of the search by definition included the interior of drawers, closets, and containers.Whittington v. State,165 Ga.App. 763, 764, 302 S.E.2d 617(1983).Thus, the investigators did not exceed the scope of the warrant by searching Phillips' closet.Id.While lawfully searching the closet for drugs, the investigators observed evidence and learned of circumstances amounting to probable cause to believe Phillips had committed child molestation."An officer in the process of executing a lawful search warrant is authorized under OCGA § 17-5-21(b) ... to seize any stolen property, contraband, or other item, other than private papers,³ which he has probable cause to consider tangible evidence of the commission of a crime, even though the property is not listed in the warrant."(Citations omitted.)Id.For this plain view doctrine to apply, the State must show that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be seen and that the incriminating character of the evidence was immediately apparent.Nichols v. State,210 Ga.App. 134, 136-137(3)(d), 435 S.E.2d 502(1993).SeeHorton v. California,496 U.S. 128, 135, 110 S.Ct. 2301, 110 L.Ed.2d 112(1990).Considering all the...